PRESERVATION OF NIAGARA FALLS 
(H. R. 18024) 



HEARINGS 



BEFORB THB 



lOMMITTEE ON RIVERS AND HARBORS 



OP THK 



HOUSE OF REPRESENTATIVES 



OP THE 



UNITED STATES, 

FIFTY-NINTH CONGEESS, FIRST SESSION, 



CONSISTING OP 



THEODORE B. BURTON, OHIO, Chairman, 
BLACKBURN B. DOVENER, W. Va, J, ADAM BEDE, MiNN. 

ROSWELL P. BISHOP, MiCH. EDGAR C. ELLIS, Mo. 

ERNEST F. ACHESON, Pa. BUFUS E. LESTER, Ga, 

DE ALVA S. ALEXANDER, N. Y. JOHN H. BANKHEAD, ALA. 

GEORGE P. LAWRENCE, MASS. STEPHEN M. SPARKMAN, FLA. 

JAMES H. DAVIDSON, Wis. JOSEPH E. RANSDELL, La. 

JAMES McLACHLAN, Cal. GEORGE F. BURGESS, Tax. 

WILLIAM LORIMER, III. BENJAMIN G. HUMPHREYS, MlBSl 

WESLEY L. JONES, Wash. 

JAMES H. CAS8IDY, Clerk. 

JOSEPH H. McGANN, AsmtaTU Oerk. 



WASHINGTON: 

GOVERNMENT FEINTING OFFIOB. 
1906. 



PRESERVATION OF NIAGARA FALLS 
(11. R. 18024) 



HEARINGS 



BEFORE THE 



COMMITTEE ON RIVERS AND HARBORS 

. * OP THE 

HOUSE OF REPRESENTATIVES 

OF THE 

UNITED STATES, 

FIFTY-NINTH CONGRESS, FIRST SESSION, 



CONSISTING OF 



THEODORE E. BURTON, Ohio, Chnirmm). 
BLACKBURN B. DOVENER, W. Va. J, ADAM BEDE, MiNN. 

ROSWELL P. BISHOP, MiCH. EDGAR C. ELLIS, Mo. 

ERNEST F. ACHESON, Pa. RUFUS E. LESTER, Ga. 

DE ALVA S. ALEXANDER, N. Y. JOHN H. BANKHEAD, Ala. 

GEORGE P. LAWRENCE, Mass. STEPHEN M. SPARKMAN, Fla. 

JAMES H. DAVIDSON, Wis. JOSEPH E. RANSDELL, La. 

JAMES McLACHLAN, Cal. GEORGE F. BURGESS, Tex. 

WILLIAM LORIMER, III. BENJAMIN G. HUMPHREYS, Miss. 

WESLEY L. JONES, Wash. 

JAMES H. CASSIDY, Clerk. 

JOSEPH H. McGANN, Assistant acrk. 



WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 
1906. 






CONTENTS 



Page. 

Robert R. McCormick, president sanitary district of Chicago 1 

Isham Randolph, chief engineer! sanitary district of Chicago 3 

J. H. Hanson, counsel for Niagara County Irrigation and Water Supply Com- 
pany - - 15 

N-iagara County Irrigation and Water Supply Company brief 26 

H. L. Cooper, engineer of the Niagara County Irrigation and Water Supply 

^Company 32 

M. A. Viele, engineer of the Niagara County Irrigation and Water Supply 

C uipany -' 45, 147 

Fra 1^ A. Dudley, counsel for the Niagara Falls Electrical Transmission Com- 

panj 47 

Job' T Romer, counsel for the Niagara Falls Hydraulic Power and Manu- 

i ,' Company 62, 73 

Jol arper, engineer of the Niagara Falls Hydraulic Power and Manufac- 

t Jompany 71 

F. . 'litridge,' director of the Niagara Falls Power Company 80 

V. H. Gratwick, president of the Buffalo Chamber of Commerce 89 

lie&olutions of the Buffalo Chamber of Commerce 104 

^j^ xnklin D. Locke, counsel for the Ontario Power Company 105 

1- 1 D. Cravath, counsel for the Niagara, Lockport and Ontario Power Com- 

my -. 109 

irge W. Wickersham, counsel for the Lackawanna Steel Company 120 

mcis V. Greene, representing the Niagara, Lockport and Ontario Power 

ompany 123 

y nens Herschel, consulting engineer of the Niagara Falls Hydraulic Power 

,• ;! id Manufacturing Company 135 

L itt V. D. Reiley, counsel for the Lower Niagara River Power and "Water 

ipply Company — 141 

H . John W. Griggs, ex-Attorney-Clieneral of the United States, representing 

t e jVIerchants' Association of New York 149 

J. ! orace McFarland, president of the American Civic Association 158 

Hon. Charles M. Dow, president of the commission of the New York State 

reservation at Niagara 165, 180 

Clinton Roger Woodruff, secretary of the American Civic Association 172 

Charles L. Huntley, vice-president of the Cataract Power and Conduit Com- 
pany 175 

Edward Hagerman Hall, secretary of the American Scenic Association 177 

Charles RoUison Laiiil), president of the Municipal Art Society of New York. 181 

Sanford T. Church, district attnrnev of Orleans County, N. Y 182 

Hon. O. W. Cutler, mayor of Niagara Falls, N. Y 185,214 

Col. Peter A. Porter, representing the Cataract House, Niagara Falls, N. Y 187 

Eugene Cary, counsel for the Citizens' Committee of Niagara Falls, N. Y 199 

Mr. Braokenridge, representing the International Acheson Graphite Company. 215 

Arthur V. Davis, general manager of the Pittsburg Reduction Company 217 

S. P. Franchot, representing the National Electrolytic Company 219 

E. F. Price, general manager of the Union Carbide Company 219 

Alfred W. Gray, counsel for the Woodford estate 220 

Frank W. Stephens, counsel for the commit'Sion of the New York State reser- 
vation at Niagara 222 

Col. 0. H. Ernst, Corps of Engineers, U. S. Army, chairman American sec- 
tion International Waterways Commission^ 233 

III 



IV CONTENTS. 



Appendix A. — Report of Hon. T. E. Bnrton, chairman of the Committee on 
Rivers and Harbors, on House joint resolution 83, calhng for report from 
International Waterways Commission 251 

Appendix B. — Report of Senator Frank B. Brandegee, chairman of the Com- 
mittee on Forest Reservations and the Protection of Game, on House joint 
resolution 83 253 

Appendix V, (S. Doc. 242). — Message from the President of the United States, 
transmitting the rejiort of the American members of the International Water- 
ways Commission, with letters from the Secretary of State and Secretary of 
War, including memoranda regarding the preservation of Niagara Falls.. .. 261 

Appendix D (S. Doc. 434). — Message from the President of the United States, 
transmitting a report made to the Secretary of War by the International 
Waterways Commission under date of May 3, 1906, upon the preservation 
of Niagara Falls 283 

Appendix E. — Report of Hon. T. E. Burton on H. R. 18024, for preservation of 

Niagara Falls 286 

Appendix F. — W. J. Clark, manager traction department General Electric 

Company, statement of industrial value of Niagara Falls 291 

Appendix G. — Henry E. Gregory, counsel for the American Scenic and His- 
toric Assoc-iation, brief of law on navigable and boundary streams 298 

Appendix H. — Report of Lieut. CoL W. H. Bixby, Corps of Engineers, U. S. 
Army, showing effect of withdrawal of water from Lake Michigan by the 
sanitary district of Chicago 308 

Appendix I. — An act for tlie control and regulation of the waters of Niagara 
River, for the preservation of Niagara Falls, and for other purposes, approved 
June 29, 1906 324 



PRESERVATION OF NIAGARA FALLS. 



Committee on Rivers and Harbors, 

House of Representatives. 
Washington, D. C, Thursday, April W, 1906. 
The committee met at 11 o'clock a. m., Hon. Theodore E. Burton 
m the chair. < 

STATEMENT OF ROBEET E. McCORMICK, ESQ., PRESIDENT 
SANITARY DISTRICT OF CHICAGO. 

Mr. McCoRMiCK. Mr. Randolph and I came down here, Mr. Chair- 
man, and Senator Cullom sent for us, explainino- that this matter was 
coming up; that the President had sent a message regarding it, and 
he thought we ought to present our case. 

The report of the Government engineers, which you have read, 
r 'commends that the Chicago Drainage Canal be limited to 10,000 
c.ibic feet of water per second; that the Niagara Power Company be 
given 9,500 feet per second, and that another Niagara power company 
be given 8,600 feet per second. Now, 10,000 cu))ic feet per second is 
not enough to preserve the health of Chicago. The drainage canal, 
which has been built at a cost already of $.50,000,000, is the only means 
by which Chicago can be drained and the drinking water kept clean. 
It is planned to have an eventual flow of 11,000 cubic feet per second. 
The rock section is cut for that flow, and when the other sections have 
been completed that flow will be accommodated in the channels. 

There are two or three reasons why 11,000 feet is the minimum. 
One is that we have to reverse the flow of the Chicago River and the 
Calumet River. They are considerable rivers, flowing into Lake 
Michigan. It takes about 6,000 cubic feet a second to reverse the 
Chicago River, and it will take 4,000 cubic feet a second to reverse the 
Calumet. That makes the 10,000 that the committee of engineers has 
spoken of. And then, to carr}^ ofl' other sewage from dift'erent parts 
of the city to connect up the sewerage system will take an additional 
4,000, making 14,000 feet a second. 

This problem is not purely one which concerns Chicago. If we had 
our own way about it. we would send a solid stream of sewage down 
to rioliet, down the Illinois River and down the Mississippi River, 
because that would be the cheapest thing for us to do. But that would 
be evidently and eminently unfair to the other people. So the statute 
under which we operate provides that there must be a flow of 20,000 
cubic feet a second for every 100,000 inhabitants of Chicago. That 
makes a fairly clear stream of water. 



2 PRESERVATION OF NIAGARA FALLS. 

You know that the State of Missouri sued out a writ for an injunction 
in the 8upronie Court, and the court dismissed the injunction because 
it held that Missouri had shown no damage, but stated that if in the 
future Missouri could show that the How of the drainage canal did do 
damage, they might then grant an injunction and close up the canal 
forever. 

If Chicago continues to grow, as it is bound to do, and the flow of 
clean water is limited, the time will be reached when the drainage 
canal will be just a tiitliy stream. It will be a detriment to the whole 
Illinois Valle}^, and will be a cause for injunction in Missouri. 

We feel this way about it, Mr. Chairman: That we do not want to 
prevent the preservation of Niagara Falls. The Chicago people travel 
a good deal, and I think a large percentage of them enjoy the Falls, 
and we would not for a minute consider building a power plant at 
Chicago for the purpose of taking water from the Falls. But we do 
think that the health of Chicago and the Illinois Valley and the water- 
way scheme which Congressman Madden is pushing here in Congress 
could come before the niere esthetic feature of Niagara scenery, and, at 
all events, that it should come before the business advantages of the 
two power plants at Niagara. You see, the engineers have classed all 
the enterprises alike. They say that the Chicago Drainage Canal should 
have 10,000 feet and the Niagara Power Company 9,500. Now, I 
submit that it is more just to give us 14,000 feet, because the very 
existence of Chicago, the very existence of the Illinois Valley, depend 
upon having as much as they need, and if 5^ou are going to limit the 
flow of water at all, take it away from those two electric-power com- 
panies, which are organized solel}^ for private protit. 

That is all I have to say, Mr. Chaii'inan. If 3^ou want the figures 
gone into in detail I shall be glad to answer an}^ questions, and those 
that I can not answer Mr. Randolph will. 

The Chairman. Suppose that the limit of 14,000 cubic feet per sec- 
ond should be reached under your present plan, will not a still greater 
quantity be required in the future'^ 

Mr. McCoKMiGK. Fourteen thousand cubic feet is estimated to accom- 
modate a population of 4,200,000, which is considerably more than 
Chicago has now, and it will take some time to reach that figure. 

The Chairman. Nevertheless, that quantit}^ as you estimate, would 
be required to take charge of the sewage which at present is created 
and must be carried off— that is, you would need the whole 14,000 
cubic feet now, you think? 

Mr. McCoRMiCK. I would not say so now. I dare say Mr, Ran- 
dolph will say so. I know that, looking at it from the financial end, 
which is my end of the business, we do not want to take any more 
water than we have to, because it is so very expensive. 

The Chairman. You ask for 8,000 feet for the Chicago River, 4,000 
for the Calumet, and 2,000 for the Thirty-ninth street sewer? 

Mr. McCoRMiCK. Yes, sir; that is it. 

The Chairman. Making 14,000 vnlnc feet altogether. You say the 
statute requires water to be diverted from Lake Michigan to the extent 
of what? 

IVIr. McCoRMicK. Twenty thousand cubic feet a minute for every 
100.000 of population. 

The Chairman. On that basis you would not require in order to 
meet the demand of the statute as much as 10,000 cubic feet a second. 
Let me see, what is your population now? 



PKESERVATION OF NIAGARA FALLS. 3 

Mr. McCoKMiCK. Of the sanitary districts, about 2,000,000, 1 think. 

The Chairman. That would require, then, about 6,700 cubic feet 
per second ? 

Mr. McCoRMiCK. There is another thing that comes into that, Mr. 
Chairman — the question of reversing the tiow of these rivers. 

The Ch:aikman. It requires water in addition to that? 

Mr. McCoRMicK. You have to have a big enough flow to be sure 
that tliose rivers are running the other wa}^ 

The Chairman. I believe that is all, Mr. McCormick. We are glad 
to have heard you. 

Mr. McCormick. Thank you. 

STATEMENT OF ISHAM RANDOLPH, ESQ., CHIEF ENGINEER, 
SANITARY DISTRICT OF CHICAGO. 

Mr. Randolph. Mr. Chairman and gentlemen, is it j^our pleasure 
to have me answer questions or shall I make a statement? 

The Chairman. We shall be glad to have you make your statement 
first. 

Mr. Randolph. I think that you, Mr. Chairman, and quite a num- 
ber of the gentlemen here are very familiar with the Chicago sanitary 
district project. You know that the water supply of Chicago is taken 
from Lake Michigan; it is its sole source of water supply. For very 
many years the discharge of its sewage was into its reservoir, which 
is Lake Michigan. This created a condition of things which became 
unbearable. It became a nuisance in the city to the health and to the 
comfort of the population. This condition reached such a stage that as 
far back as 1885 a comnjission was appointed by the then mayor, Carter 
H. Harrison (first), to advise as to what should be done to relieve Chi- 
cago of this condition. That commission examined into the possibili- 
ties, and reported upon three alternatives. 

The first project Avas to build an intercepting sewer which would 
take all the sewage out of Chicago and convey it to a point near the 
southern end of Lake Michigan and there discharge it, by pumping, 
into the lake. At the same time that this was being done the intakes 
for water supply were all to be removed far to the north of the city, 
so as to divorce the source of pollution and the source of supply as far 
as possible. 

As a variant of this proposition it was proposed to pump the sewage 
onto waste lands and to create a great sewage farm there. It was 
found that the cost of this project would be about $75,000,000, with 
an annual charge for maintenance of $2,000,000. 

The third and last alternative was to reverse the flow of the Chicago 
River and to discharge that river into the Desplaines and Illinois 
valleys. 

This was the alternative which was adopted. In 1889 a bill was 
passed through the legislature of Illinois providing for the formation 
of sanitary districts which should take their water from Lake Michi- 
gan. This was general legislation, although special in its purpose; for 
it was well known that Chicago would be the only city that could avail 
of it. Under this law the sanitary district has proceeded to dig a 
channel across the divide between the watershed of Lake Michigan 
and that of the Illinois Valley. That channel has now been completed 
for some years. Water was turned into it on the 17th day of January, 
lUOO. This channel is fed through the Chicago River. This river 



4 PRESERVATION OF NIAGARA FALLS. 

formerly flowed into Lake Michig-an. In fact, it was more a bayou 
than a river, for at times, when the wind was on shore, the water 
flowed up stream, and it only had a serious flow of its own toward the 
lake in times of flood. At such times the accumulated sewage of the 
river was swept out into the lake, and into the intakes which supplied 
water to the cit}'. 

The capacity of the Chicago River for flow was 150,000 cubic feet 
of water per mitmte. We have been engaged for some years in deep- 
ening and widening that river. We are widening it to 200 feet; we 
are deepening it to 20 feet. This gives us a volume of flow through 
the river, at a limit of a mile and a quarter per hour (which is the 
velocity fixed by the Secretary of War), of 480,000 cubic feet of water 
per minute. 

The Thirty-ninth street conduit, which runs from Lake Michigan to 
the south fork of the south branch of the Chicago River, will dis- 
charge into that south branch 120,000 cubic feet of water per minute. 
This is done by pumping. 

The Chairman. Pumping from the lake, or pumping from the 
west end? 

Mr. Randolph. Pumping from the lake. We are erecting there 
six pumps. Two of these pumps are the largest ever attempted by 
man. Each one of the two pumps will throw 40,000 cubic feet of 
water per minute; that is, 300,000 gallons of water per minute for 
each pump. 

These sources of supply will give us 600,000 cubic feet of water 
through our main drainage channel. The main channel from Chicago 
to Lockport, where the controlling works are located, is 28 miles in 
length. It has a minimum width in the rock of 160 feet. The min- 
imum depth, with the lake at its lowest stage and the full flow of 
water, will be 22 feet. You must bear in mind that the greater the 
flow through such a channel the less the depth, because if it were 
simply a pool the depth would not be uniform, but would be greater 
as you reached the southern end, because the fall in the canal is some- 
thing like 5 feet in that distance of 28 miles; but when the flow 
which it is proposed to put through it is actually in operation the 
surface of the water would be parallel to the bottom of the channel, 
which would give the minimum of 22 feet in depth. 

What we have done has provided for the city of Chicago at the pres- 
ent time; but there is growing up to the south of us, within the city 
limits and in the adjacent territory, a vast manufacturing district, a 
district which is going to be very populous. There is ever}^ indication 
of that. This district is all discharging now into the Calumet River, 
which flows directly into Lake Michigan, and discharges within 3i 
miles of one of our principal sources of supply, the Hyde Park intake. 

The Chairman. For drinking water? 

Mr. Randolph. Yes. It is necessary for the proper protection of 
Chicago that the Calumet River should be reversed, as well as the 
Chicago River. We have now secured legislation for that purpose. 
The work is located, and we are proceeding to buy the right-of-way, 
with the expectation of soon commencing work. 

This last-mentioned project is not to-day a present necessity, but it 
will be a present necessity by the time we can complete it, because the 
growth of population in that region is so great. We will require for 



PRESERVATION OF NIAGARA FALLS. 5 

that project 4,000 cubic feet of water per second, making the total of 
14,000 cubic feet of water per second for whicb we ask. 

Mr. Jones. Where will the Calumet River go when you reverse it? 

Mr. Randolph. It will flow through the Sag Valley, and enter our 
channel at what is known as Sag Bridge, on the Alton road — the rock 
channel. 

Now, gentlemen, I have covered the matter as briefly as 1 can; and 
1 will be glad to answer any questions that I can answer. 

The Chairman. What is about the quantity, Mr. Randolph, con- 
sumed for the water supply of Chicago independent of the drainage 
canal ? 

Mr. Randolph. To my best recollection, it is 385,000,000 gallons 
every twenty-four hours. 

The Chairman. W^hat would that be, reduced to cubic feet per 
second^ 

Mr. Randolph. We would have to divide that by 7^. 

The Chairman. Every twenty-four hours, you say? 

Mr. Randolph. Yes, sir. ♦ 

The Chairman. That would be about 52,000,000 cubic feet in twenty- 
four hours. This is a question of some considerable importance, 
because it shows the total amount taken from the lake at Chicago. 

Mr. Randolph (after making computations). Mr. Chairman, if I 
may answer any other questions at this time, and flnish these compu- 
tations and hand them in to you, I think it will save time. 

The Chairman. A hasty computation seems to show that it would 
be approximately 600 cubic feet per second. It does not seem as 
though that were large enough. 

Mr. Randolph. Yes; I think that is quite large enough. 

The Chairman. It is — 600 cubic feet per second? 

Mr. Randolph. Yes. 

The Chairman. That would be less than a twentieth of the amount 
which you ask for your drainage canal? 

Mr. Randolph. Yes, sir. 

Mr. Bede. Does the flow of the canal above the amount required to 
reverse the streams of the Chicago and Calumet rivers have anything 
to do with the health of the people below, say at St. Louis, or is there 
plenty of water to dissolve all this refuse? 

Mr. Randolph. That is a question, j^ou know, which was gone into 
at very great length in our recent suit with St. Louis. I did not hear 
all of that testimony, but I was present at the opening of that case, 
when their star witness, Doctor Ra vault, was on the stand. I never saw 
a man more deeply versed in the subject than Doctor Ravault was. He 
testified day after day as if he was reading out of a book, but with 
nothing before him. On the third or fourth day the examination in 
chief was concluded, and he was turned over for cross-examination; 
and I will have to epitomize, of course, but they broke him down in 
the shortest possible time. The examination was something like this: 

Doctor Ravault, what is the greatest distance that typhoid germs are known to 
have traveled in flowing water? 

He said: 

Sixteen miles is the greatest authenticated distance, with 50 miles, the case of 
Detroit, in doubt. 

Doctor Ravault, did you find in the waters of the Illinois and the Desplaines River 
any germs which are pathogenic to the human species? 



6 PRESERVATION OF NIAGARA PALLS. 

I did not. 

Doctor Ra vault, did you find in the waters of theDesplainesand Illinois Rivers any 
germs which you did not find in the waters of the Mississippi above the mouth of 
the Illinois and in the Missouri river? 

I did not. 

So that, so far as he was concerned, he was discredited right there. 

Mr. Bede. I should say to the chairman that I have studied the 
Chicago situation a little, and I am very much impressed with the fact 
that the health of the people of Chicago and the people below there is 
of a great deal more importance to the nation than the poetry and the 
commerce of Niagara Falls. 

The ( JHAiRMAN. The mind of the court is made up, then. [Laughter.] 

Mr. Humphreys. What was the discharge of the Chicago River into 
Lake Michigan originally? 

Mr. Randolph. That was a question of rainfall entirely. 

Mr. Humphreys. About what would you say the average dischai"ge 
was? 

Mr. Randolph. There were times there when there was practically 
no discharge but the sewage discharge for days and days together. 
The influent streams into the Chicago River were practicalh^ dry. 
Then, at other times, when there were floods in the river, there would 
be as much as five hundred to six hundred thousand cubic feet of water 
flowing out of the two rivers, the north and south branches. 

Mr. Humphreys. A second, or a minute? 

Mr. Randolph. That is a minute. 

The Chairman. Five hundred to six hundred thousand cubic feet 
per minute? 

Mr. Randolph. Yes, sir. 

The Chairman. So that in a flood stage there would be 10,000 cubic 
feet per second? 

Mr. Randolph. Yes, sir. 

The Chairman. All our computations, you know, are made on the 
basis of so much per second. 

Mr. Randolph. Yes, sir. 

The Chairman. Ten thousand cubic feet per second — that would be 
a flood stage ? 

Mr. Randolph. A flood stage; 3'es; an extraordinary flood stage; 
such a flood as we had there which flooded the whole lumber district 
and drowned out that region. 

The Chairman. Could you state the average outflow from the Chi- 
cago River to Lake Michigan? Take it for a year. 

Mr. Randolph. Prior to the opening of the canal? 

The Chairman. Yes. 

Mr. Randolph. No, sir; it would be a pure guess. 

The Chairman. How about the Calumet River? 

Mr. Randolph. The Calumet River is very simiUir to the Chicago 
River in that respect. I have as frequently seen the current running 
upstream in the Calumet as I liave seen it running down. 

Mr. Humphreys. The two together would not average 5,000 cubic 
feet per second, you think? 

Mr. Randolph. I do not believe they would; no, sir. 

Mr. Davidson. The Calumet River is quite a river clear up to Ham- 
mond, is it not? 

Mr. Randolph. Yes, sir. 



PKESERVATION OP NIAGARA FALLS. 7 

Mr. Davidson. And it flows there continuousl}' the year round, does 
it not^ 

Mr. Randolph. It flows there continuously, but with very, very 
small volume; such small volume that with a wind on shore the current 
is upstream. 

Mr. Alexander. Does the Calumet take its rise up in the swamps 
of northwestern Indiana? 

Mr. Randolph. Yes, sir, 

Mr. Alexander. East of Hammond? 

Mr. Randolph. Yes, sir. The Calumet has two branches — the 
Grand Calumet and the Little Calumet. The Little Calumet is the 
longest of the two and drains the largest area. The floods from the 
Little Calumet, measured at Riverdale, have reached in the neighbor- 
hood of 750,000 cubic feet of water a minute. 

Mr. Alexander. Do you propose taking the Calumet into the Des- 
plaines? Probably that question was answered before I came in. 

Mr. Randolph. It is to be taken down through the Sag Valley and 
discharged into our channel at Sag Bridge. I have telegraphed, gen- 
tlemen, for a number of copies of the concise reports, which have 
maps in them showing these things that J am speaking of. They will 
prol)ably be here to-morrow morning, on j^our desks, so that you can 
see them. 

The Chairman. One other question, Mr. Randolph: What is the 
quantity of water diverted from Lake Michigan through the Chicago 
River at present? 

Mr. Randolph. At the present time we are limited by the Secre- 
tary of War on account of our not having completed that improve- 
ment. That improvement is about 75 per cent completed, but there 
are congested points in the river which would create too great a cur- 
rent for navigation if we took our full flow through, so that we are 
taking now about 425,000 cubic feet of water per minute. 

The Chairman. That is just a trifle over 7,000 per second? 

Mr. Randolph. Yes, sir. 

Mr. Alexander. What is your limit when completed? 

Mr. Randolph. Our original proposition, when we considered only 
the Chicago River, was for 10,000 cubic feet of water per second. 
But when it became evident that we must reverse the Calumet River, 
it was necessary to ask for 4,000 cubic feet per second to reverse that 
river. 

Mr. Alexander. I mean your limit on the Chicago River when it 
is completed. 

Mr. Randolph. Our limit through the Chicago River proper is 
480,000 cubic feet per minute. Then we take through the Thirty- 
ninth street conduit 120,000 cubic feet per minute, giving us, at the 
entrance of our channel, 600,000 cubic feet per minute. 

The Chairman. Or 10,000 cubic feet per second? 

Mr. Randolph. Or 10,000 cubic feet per second; yes, sir. 

The Chairman. Have you permits from the Secretary of War 
authorizing the taking of that nmch already? 

Mr. Randolph. I could hardly say that it is a permit from the Secre- 
tary of War. We began this flow without au}^ authority from the 
General Government, as I understand it; but when we began it, an 
order was issued from the Secretary of War that we should not flow 



8 PRESERVATION OF NIAGARA PALLS. 

in excess of 250,000 cubic feet of water per minute through that por- 
tion of the river which we had not improved. 

The Chairman. What do 3^ou mean by "the portion of the river 
you had not improved?" 

Mr. Randolph, As I have just stated, there is about 25 per cent of 
the river which is not yet improved. We are working upon it, and 
hope to have it done in the course of a couple of years. 

Mr. Davidson. What do you mean by "improved?" 

Mr. Randolph. Widened to 200 feet, and deepened to 26 feet. 

The Chairman. Just what is your permit from the Secretary of 
War? Describe it. 

Mr. Randolph. Our permit from the Secretary of War, or our 
limitation, rather, is 250,000 cubic feet of water per minute. 

Tlie Chairman. Or 4,166 cubic feet per second. 

Mr. Randolph. Yes, sir. 

Mr. Burgess. Mr. Randolph, assuming that a limitation should be 
put upon the total amount of water to be taken from the lake under 
your tinished project, what is your judgment as to what the minimum 
of the total amount ought to be, and what are your reasons for it? 

Mr. Randolph. I. think that the minimum should be what we have 
asked for — 14,000 cubic feet a second. 

Mr. Burgess. Now, why ? Can j-^ou give your reasons, briefly ? 

Mr. Randolph. My reasons are these: Chicago, as you know, is a 
very rapidly growing cit}'. When it was destroyed in 1871 I think it 
had a population approximating 500,000 people. The city has been 
rebuilt since then, and now has a population of about 2,000,000 souls. 
That is increasing very rapidly, year by yenr. and the southern district 
of which 1 spoke is filling up with people, becoming a vast manufactur- 
ing region; and the authorities on health who have passed upon this sub- 
ject say that the proper dilution for every 100,000 inhabitants is 20,000 
cubic feet of water per minute. Basing it upon that, it will not be 
very many years before we require all that we are asking for. 

The Chairman. Would this amount of 14,000 cubic feet per second 
be required for some years to come? 

Mr. Randolph. No, sir. 

The Chairman. How many years, probably ? 

Mr. Randolph. Probably it will not be required for from six to 
eight years; but in the meantime we will have to build this channel 
which is to take care of the 4,000 cubic feet. 

The Chairman. Which you do not wish to build unless you know 
that you can draw off this water? 

Mr. Randolph. No, sir. 

The Chairaian. And if you are to be allowed to do so you are going 
right ahead with it now? 

Mr. Randolph. We are preparing to do that work now: and we 
were startled when we saw this recommendation that we should be 
confined to 10,000 cubic feet of water per second, because we were 
going ahead on the assumption that we would have this other 4,000 
cubic feet of water, and were preparing to make an investment of 
$12,000,000 in this work. 

The Chairman, What, in your judgment, Mr. Randolph, is the 
effect on the level of Lake Michigan of the drawing off' of this water? 

Mr, Randolph. Mr. Chairman, that is what we might call an engi- 
neering guess. No one has yet been able to arrive at a satisfactory 



PRESERVATION OF NIAGARA FALLS. 9 

determination of it. Observations of the Lakes for the last forty years 
show that Lake Michioan and Lake Huron reach their lowest stage of 
water in the winter season, January and February. They rise to tlieir 
maximum height in the summer season, during June and July and 
August. The St. Louis suit forced us to open this canal at a time 
when we did not expect to open it; and it was a very, very fortunate 
circumstance for us. We were compelled to open it on the 17th day 
of Januarjr, 1900, when the lake was at its low stage. The lake rose 
steadily from that time to its maximum the following summer, and of 
course we are not credited with having raised the Lakes. 

Mr. Alexander. That would be the summer of lUOl? 

Mr. Randolph. 1900. You see, it was in January, 1900. 

Mr. Alexander. Oh, yes; the following summer? 

Mr. Randolph. Yes. Another thing which has militated against 
any determination of its effect upon the Lakes is that the Lakes have 
been higher since 1900 than they had for a long period before, and this 
winter Lake Michigan has been very much higher than usual with us. 

Mr. Alexander. How much higher was it, Mr. Randolph, last 
summer than in the summer of 1900? 

Mr. Randolph. I am not sure of that, because I did not bring the 
figures with me; but I should say it was probably 6 inches higher than 
it was in the summer of 1900. 

Mr. Alexander. It was a foot and a half higher with us at Buffalo. 

Mr. Randolph. It was ? 

Mr. Alexander. Yes, sir. 

Mr. Jones. What is the variation between high and low water? 

Mr. Randolph. Between winter and summer? 

Mr. Jones. Yes. 

Mr. Randolph. Taking the mean of the last forty years, as I re- 
member it, it is ninety -two one-hundredths of a foot. 

Mr, Jones. Ninety-two one-hundredths of a foot? 

Mr. Randolph. Yes, sir. 

Mr. Alexander. I spoke of the summer Mr. Randolph, not of the 
winter. 

Mr. Randolph. Yes, sir. 

Mr. Davidson. Is it generally understood that there is a current 
flowing from Lake Michigan through the straits into Lake Huron? 

Mr. Randolph. Yes, sir. 

Mr. Alexander. I wanted to ask that question next — first, as to 
the effect on the level of Lake Michigan. Have you answered that 
question fully ? You say it is an engineering guess? 

Mr. Randolph. Yes, sir. 

Mr. Alexander. Complicated by the fact that of recent years the 
level of this great lake, as well as all the Lakes, has been higher than 
usual ? 

Mr. Randolph. Yes. 

Mr. Alexander. Now, have you anything further to say on that 
point? Excuse me, Mr. Davidson; but I would rather run down that 
question in regard to Lake Michigan fully first. 

Mr. Davidson. Certainly. 

Mr. Randolph. That is something that I have never done any indi- 
vidual work upon. I have h«ard the guesses of several engineers* 
The maximum guess was that it was lowered 6 inches. 

Mr. Alexander. That the drainage canal lowered it 6 inches? 



10 . PEESERVATION OF NIAGARA FALLS. 

Mr. Randolph. That it would eventually. 

Mr. Alexander. That is, you mean when you take the 14,000 cubic 
feet per second ? 

Mr. Randolph. No, sir; 10,000 cubic feet per second was what they 
were figuring on then. 

Mr. Alexander. A diversion of 10,000 cubic feet per second would 
lower it 6 inches? 

Mr. Randolph. Yes, sir. 

Mr. Burgess. That was the maximum guess of the engineers? 

Mr. Randolph. Yes, sir. 

Mr, Burgess. Do you remember the minimum guess? 

Mr. Randolph. No, sir; I do not. 

Mr. Bishop. Is it not a fact that the average rainfall on the Great 
Lakes for the last four or five years has been greater than it was for 
the four or five years preceding? 

Mr. Randolph. I think it is. I know that during the time we were 
building the drainage canal it was an unusually dry period, a very dry 
period; and the wet season commenced after that. 

The Chairman. Is that all you desire to say in regard to the ques- 
tion about the level of Lake Michigan, Mr. Randolph? 

Mr. Randolph. Yes, sir, I would simply have to express ignorance 
on that subject; 1 have done no personal work on it. 

The Chairiman. Mr. Davidson asks what you would say as to the 
effect of the drainage canal on the level of the other lakes. Connected 
with that is the question, To what extent is there an outflow from 
Lake Michigan through the Straits of Mackinac into Lake Huron and 
on down to the lower lakes? 

Mr, Randolph. I was looking up some matters on that subject yes- 
terday, and I have some data here which I will refer to. I find that 
the water area of Lake Michigan is 22,400 square miles; the area of 
Lake Huron is 23,200 square miles; the discharge from Lake Superior 
is 75,000 cubic feet per second. 

The Chairman. That estimate is a little higher than the usual esti- 
mate, is it not, which I believe is about 60,000? However, 1 do not 
know but that that maj' be regarded as correct — 75,000, you say? 

Mr. Randolph. Yes, sir; with an increase for every foot of rise of 
15,500 cubic feet per second. Now, the discharge into the St, Clair 
River is 206,400 cubic feet of water per second; so that there is an 
increase over the discharge of Lake Superior of 131,400 cubic feet per 
second, which must come from Lakes Huron and Michigan. Those 
two lakes are very nearl}^ equal in area. Lake Huron has a greater 
area by 800 square miles, and it has a greater watershed by 6,600 
square miles. The rainfall on Lake Michigan and over on its water- 
shed is given as 36 inches per annum, and on the other watersheds 35 
inches per annum; so that it would seem fair to sa}^ that 45 per cent of 
the water discharging from those two lakes comes from Lake Michigan. 

The Chairman. Comes from Lake Michigan ? 

Mr. Randolph. Yes, sir; that is, 45 per cent of this increase of 
131,000 cubic feet. Taking those areas and the supposed outflow 
from Lake Michigan, I find that if there was no rainfall whatever, 
no evaporation, no outflow from any other source, and no inflow from 
any other source, drawing ofl' 14,000 cubic feet of water per second, 
it would take one 3^ ear and forty one-hundredths to lower the lake 
1 foot. If you shut oif all sources of supply and all other outlets 



PRESERVATION OF NIAGARA FALLS. 11 

from the lake, the drawing off of this 14,000 cubic feet per second 
would take a j^ear and forty one-hundredths to lower it 1 foot. 

The Chairman. Figuring on that basis, the lowering of the waters 
of Lake Michigan to the extent of 6 inches would have what effect 
on the discharge into Lake Huron and the lower lakes ^ 

Mr. Randolph. Of course the lowering of Lake Michigan 6 inches 
would diniiilish the discharge into the lower lakes. 

The Chairman. How much? 

Mr. Randolph. I do not know how much. I think it is given for 
each foot of depth in the report of the United States Engineers of the 
surv^ey of the northwestern lakes, made on April 15, 1U05. 1 think 
they give there the effect of each foot of lowering or raising. 

The Chairman. That is given in the last report of the Chief of 
Engineers'^ 

Mr. Randolph. 1 think so. 

The Chairman. What, in your judgment, is the fact, Mr. Randolph, 
as to this question: Can any engineer arrive at exact results in deter- 
mining the question of the effect of that drainage canal in lowering the 
level of Lake Michigan and the effect on the Lakes below Lake Mich- 
igan ? 

Mr. Randolph. No, sir; I do not believe any engineer can, and 1 
think that is the consensus of opinion from all of our leading engi- 
neers. They have recommended, 3'ou know, that a careful series of 
observations extending over a long term of years be made to try to 
determine that thing; and I think those observations are being made 
by the Government now. 

Mr. Davidson. Would the drawing of the present amount of water 
through the drainage canal lessen the amount of flow of the current 
through the Straits^ 

Mr. Randolph. I presume it does. If Lake Michigan is contribut- 
ing, say, sixty-one or sixty-two thousand cubic feet per second in that 
direction, and you take off 14,000 in the other direction, I take it for 
granted that it does lessen the flow. 

Mr. Davidson. The amount that you take off by way of the drainage 
canal would, in fact, be taken out of the level of the lower lakes rather 
than out of the level of Lake Michigan, would it not? In other words, 
if you did not take it out, the amount you now take out would be added 
to and carried out in the current through the straits, would it not? 

Mr. Randolph. That is, your idea is that the 14,000 cubic feet that 
we take out is taken away from the flow that goes in the other direc- 
tion ? 

Mr. Davidson. Yes, sir. 

Mr. Randolph. I am not sure that that is a fact. ' 

Mr. Davidson. I am asking for information. 

Mr. Randolph. 1 am not sure that that is a fact. I am rather 
inclined to think that it is so much more taken from the lake. 

Mr. Davidson. So much more taken from the lake? 

Mr. Randolph. Yes, sir. 

Mr. Humphreys. That being true, it would not diminish the flow 
into the other lakes ? 

Mr. Randolph. No, sir; only to the extent to which the surface of 
Lake Michigan and Lake Huron were lowered. If you lowered the 
surface of those lakes you would diminish the depth of the rivers 
which flow out of them, and consequently the volume of flow which 



12 PRESEEVATION OF NIAGARA FALLS. 

passes throiig-h that cross section. You diminish the cross section by 
aiminishing- the level of the lake. 

Mr. Davidson. The amount of flow through the straits from Lake 
Michigan would natural!}' be more as the level of Lake Huron was 
lowered, would it not, making more currents 

Mr. Randolph. As the level of Lake Huron was lowered? 

Mr. Davidson. As the level of Lake Huron was lowered. Does not 
Lake Huron act as a dam to Lake Michigan to some extent? 

Mr. Randolph. They are both at the same elevation. There is a 
difference of only five one-hundredths of a foot between the elevations 
of the two lakes, I think. They are practically at one level. The 
mean surface of Lake Michigan is given as 581.35 feet above mean tide 
at New York and the level of Lake Huron is given as 581.4 feet, so that 
there is a difference of only five one-hundredths of a foot between the 
levels of those two lakes. I am rather inclined to think that even that 
is an instrumental error and that they are prohabl}' the same. 

Mr. Davidson. Then, if they are practically the same, the drain is 
by reason of the fall at the St. Clair and Detroit rivers? Is not that 
a fact? 

Mr. Randolph. Yes, sir. 

Mr. Davidson. And all above that is practically a pool? 

Mr. Randolph, Yes, sir. There is a fall of some 8 feet (8.29 feet, 
I think it is) between Lake Huron and Lake Erie. 

Mr. Davidson. Yes. Now, that fall acts as a drain to the pool 
formed by Lakes Huron and Michigan? 

Mr. Randolph. Yes, sir. 

Mr. Davidson. As a matter of fact, then, the drawing of water 
through the drainage canal would affect the level of Lake Huron as 
well as the level of Lake Michigan? 

Mr. Randolph. Certainly; those two lakes being practically one 
pool, they would be affected by it. 

Mr. Burgess. Lake Huron would be lowered 6 inches, too? 

Mr. Randolph. Probably. 

Mr. Davidson. Then you account for the current through the 
Straits of Mackinac as being the result of the current through the St. 
Clair flats, drawing off' in that direction, do you? 

Mr. Randolph. The St. Clair River forms a channel through which 
these waters flow. 

Mr. Davidson. Yes; and except for the flow out of that end of 
Lake Huron there would not be the current which you spoke of a few 
moments ago through Mackinac? 

Mr. Randolh. No, sir; no, sir. Mr. Burton, may I ask you one 
question before I forget it? Can you give me the sailing distance from 
Chicago to Buffalo? I was asked that question yesterday b}' the Sen- 
ate committee, and I could not remember it. 

The Chairman. Why, no; I do not know that I can. It is between 
900 and 1,000 miles. 

Mr. Randolph. I stated to them that I thought it was between eight 
and nine hundred, but 1 was not sure. 

Mr. Alexander. It is about 1,000 miles from Buffalo to Duluth. 

Mr. Randolph. Yes. 

The Chairman. That is, it is between 900 and 1,000. 

Mr. Randolph. Yes, sir. 

The Chairman. The trouble is that those sailing distances are hardly 



PRESERVATION OF NIAGARA FALLS. 13 

ever given twice in the same figures, and it is hard to carry them in 
mind on that account. 

Mr, Davidson. I do not like to take all the time, but I would like 
to ask Mr. Randolph two or three other questions. 

The Chairman. Certainly. 

Mr. Davidson. What effect do the tunnels in the Chicago River 
now have on the flow of those rivers, as to the current and the 
capacity ? 

Mr. Randolph. At the present time thej^ are not affecting us seri- 
ously, because of the fact that we have not completed our widening 
and deepening at other places. They would afi'ect us very seriously 
if that widening and deepening had been completed. 

Mr. Davidson. The}' would act as a dam ? 

Mr. Randolph. Yes, sir. 

Mr. Davidson. If those o])structions were removed, is it practically 
a pool to the controlling works at Lockport? 

Mr. Randolph. There is a fall of about 5 feet and 2 or 3 inches 
inches from Lake Michigan. 

Mr. Davidson. And the current is produced only by reason of the , 
flowing at Lockport? 

Mr. Randolph. Yes, sir. 

Mr. Davidson. What effect would it have on the amount of water 
necessary to put through the canal if that canal was open for naviga- 
tion and expanded? 

Mr. Randolph. That would not affect us in any way. The water is 
flowing there anyway. This volume has to go out. 

Mr. Davidson. No additional supply would be needed on that 
account ? 

Mr. Randolph. No, sir; no, sir. You know that all the bridges 
over our channel are movable structures. The}' have not been equipped 
with operating machineiy, but they are built as movable structures, 
and the sanitary district law required us to open those bridges to navi- 
gation seven years after the water was turned into the channel, so that 
we would be required to equip those bridges next year. 

Mr. Ransdell. Mr. Randolph, who was it that made the recom- 
mendation that you should be limited to 10,000 cubic feet per second? 
You stated that, but I did not gather who it was that made that 
recommendation. 

The Chairman, It was this report of the International Waterways 
Commission that you have before you, Mr. Ransdell. Perhaps it was 
filed when you were away. You will find the figures given on page 
12 of the report — the preservation of Niagara Falls. 

Of course there is another question to be considered here in addi- 
tion to Niagara Falls, and now that the subject is under consideration 
it is well to have hearings upon the matter. That is its effect upon 
navigation as regards further demands for the water of Lake Michi- 
gan. Are there to be any channels on the north side of the Chicago 
River? Are those in contemplation? 

Mr. Randolph. Those are in contemplation, but they do not at all 
aftect the volume of water coming from the lake. There is a conduit 
on Lawrence avenue; there would be a canal built from the north 
branch to Evanston, the elevation of the lake being the same all along 
its shore. Those channels can only be supplied by pumping. We 
pump from the lake, and that flow meets the main Chicago River at 
p N F — 06 2 



14 PRESERVATION OF NIAGARA FALLS. 

Kinsley street; they come together there, and the flow that comes 
from that pumping is 

The Chairman. Is utilized as part of the discharge through the 
drainage canals 

Mr. Randolph. Yes, sir. 

The Chairman. Now, about extending your sewerage system farther 
south in the Calumet River — there is a very great growth in that direc- 
tion. Will any intercepting canals be necessary down there? 

Mr. Randolph. We believe that we are taking care of that whole 
region by this channel which we propose to put through the Sag Valley. 

The Chairman. There is still another quc.stiou that is outside of 
your jurisdiction: There is probable growth in Indiana, bordering on 
the lake. What provision will they make for their sewage^ 

Mr. Randolph. I suppose that they will discharge it into the 
Calumet River, which runs through their plants. The unfortunate 
part of the Avhole business is that we are making an improvement 
which will benefit Indiana to a very large extent, and for which 
Indiana will not be required to contribute anything. We have to 
bear the burden of the whole improvement. It is a topographical 
condition which forces us into this situation. 

Mr. Davidson. If you take the Calumet River 3'ou have to take 
everything that comes down it? 

Mr. Randolph. Everything that comes into it; yes. sir. 

The Chairman. It would be necessary to build a very considerable 
intercepting sewer. There is another proposition before this committee 
now which looks like development farther on east than Indiana Harbor. 

Mr. Randolph. Yes, sir. 

The Chairman. A very considerable development. 

Mr. Randolph. Well, you know the Calumet River runs for many 
miles to the east through Indiana, and all of these proposed improve- 
ments are along one branch or other of that river. 

The Chairman. The probable plan would be, then, not by an arti- 
ficial intercepting sewer, but by sewers which tapped the Calumet 
River? 

Mr. Randolph. Yes, sir. 

The Chairman. I believe that is all, Mr. Randolph, unless there is 
something further. 

Mr. Randolph. lam very much obliged, gentlemen. 

(The committee thereupon proceeded to the consideration of other 
matters, after which it adjourned.) 



Committee on Rivers and Harbors, 

House of Representatives, 

Monday, April 16, 1906. 
The committee met at 11 o'clock a. m., Hon. Theodore E. Burton in 
the chair. 

The Chairman. Mr. Hanson, we desire, if possible, to finish this 
hearing in an hour. First I take it you desire to be heard on the legal 
phases of the question. 

Mr. Hanson. Yes, sir; and I think at the same time I will give a 
short history of the company, if you please. 
The Chairman. Very well. 



PKESERVATION OF NIAGARA. FALLS. 15 

STATEMENT OF J. H. HANSON, ESQ., COUNSEL, NIAGARA COUNTY 
IREIGATION AND WATER SUPPLY COMPANY. 

The Chairman. Mr. Hanson, we would like to hear from you 
whether any question is raised as to the right of Congress to pass the 
pencling bill. 

Mr. Hanson. We do raise that question. 

The Chairman. We would like to hear from you on that point. 

Mr. Hanson. The title of the bill is for the control and regulation 
of the waters of Niagara River, for the preservation of Niagara Falls, 
and for other purposes. In the body of the bill no other purpose 
appears than the purpose to preserve the beauty of Niagara Falls, and 
our position is that it is not within the power of Congress to exercise 
any control over navigable waters of the United States excepting for 
the purpose of controlling navigation in the interest of interstate and 
foreign commerce. That doctrine is laid down very strongl}^ in 107 
United States. In 7S United States the doctrine is laid down that has 
been followed and accepted in most of the States of the Union, that a 
riparian owner on the banks of a navigable river has valuable pi'operty 
rights to the use of the waters of that river for domestic j^^^rposes and 
for manufacturing purposes, and that he can not be' deprived of those 
rights without compensation by any person other than the sovereign 

Eower; and that the sovereign can not exercise the right to take away 
is property in the river arbitrarily, that the State must exercise its 
control over the waters of the' river with due regard to the property 
rights of the riparian owner, and that the riparian owner must exer- 
cise his rights to the use of the waters of the river with due regard to 
the Government control of the waters in the interest of navigation. 

Recently in the courts of the State of New York the question arose 
in this way. A riparian owner along the banks of the Hudson with- 
out any authority from the State, without having acquired the rights 
to the use of the bed of the river, constructed a wharf in the Hudson 
River. Suit was instituted by the attorney-general for the purpose 
of restraining further use of the wharf and to compel its removal. 
The court held there that the question was a question of fact to be deter- 
mined in a court of law whether the structure itself was a nuisance, 
and whether it did interfere with navigation, and since the State failed 
to establish that fact it must fail in maintaining its cause of action. 

The United States Supreme Court in 174 United States has practi- 
call}" held the same doctrine, in the action which arose to restrain the 
the use and diversion of the headwaters of the Rio Grande. It 
was there held by Mr. Justice Brewer that whether the diversion of 
water interfered with the navigable capacity of a stream was a ques- 
tion of the fact, that the State could not say arbitrarily that the diver 
sion of any water would interfere with navigation. It was something 
to be determined in a court of equit}^ 

Mr. Alexander. Where is that case to be found? 

Mr. Hanson. In 174 United States. All these cases are cited in the 
brief I have here, which will be printed. 

The pending bill proposes to take away these property rights which 
from time immemorial the courts have held belong to every riparian 
owner, and you are going to make the right to take away waters from 
Niagara River or any navigable stream depend on a revocable license 
of the Government. The result of that is going to be. gentlemen, that 



16 PKESEKVATION OF NIAGARA FALLS. 

you are going to impair, ruin, the equities of every company now 
operating at Niagara and ever}^ company which contemplates a devel- 
opment there. We, ourselves, are riparian owners, we own a portion 
of the bed of Niagara River and we are entitled by virtue of that 
ownership to divert and use the waters of Niagara River so long as 
that diversion does not interfere with the navigal)le capacity of 'the 
stream. We purpose to take the waters at a point where navigation 
ceases; we pui'pose to discharge the waters at a point above where 
navigation begins, and we say we have a perfect right to do that. 

When our works are completed if we do interfere by taking 10,000 
cubic feet of water per second, and if 5,000 cubic feet of water per 
second would not amount to an interference then we would be entitled 
to use the 5,000 cubic feet per second. 

The Chairman. Do you tind any case, Mr. Hanson, in which Con- 
gress has asserted its right to prevent the diversion of water from a 
navigable stream in which the courts have denied that right, have 
overruled the act of Congress ? 

Mr. Hanson. I find in 174 United States, that I have referred to, 
that Justice Brewer says that it does not follow as a matter of course 
that the Government may succeed in such an action. It must estab- 
lish that the navig'able capacity of the stream has been destroyed or 
injured or impaired. I do not find any other 

The Chairman. He states, however, in that case, does he not, that 
the jurisdiction of Congress does not extend merely to the navigable 
portions but to the nonnavigable portions of the stream as well^ 

Mr. Hanson. Yes, sir. 

The Chairman. Suppose Congress should in its wisdom or unwis- 
dom decide that all the water in a navigable stream ought to remain, 
in order that the greatest possible depth might be obtained; and instead 
of dredging the channel deeper, that Congress should decide to con- 
serve all the waters flowing into a stream; is it not within the power 
of Congress 

Mr. Hanson (interrupting). 1 do not think so. 

The Chairman. In other words, 3'our contention is that Congress 
has merely a sort of prima facie right to control nnvigablc streams, 
and that the real question is one of fact to be determined by the 
courts, and the courts may review the action of Congress? 

Mr. Hanson. That is not quite my contention. My contention is that 
every owner along the banks of a navigable stream has a vested prop- 
erty right to the use of the waters of that stream, subject to the para- 
mount right of the Government to control those waters in the interest 
of navigation alone; that each right must be enjoyed with due regard 
to the rights of others; that the Govermnentcan not arbitrarily sa}' to 
the riparian owner, ''You may not take any water from this stream,'' 
but that the riparian owner may not take so much that the navigable 
capacity of the stream is ruined or destroyed. 

The Chairman. In maintaining the navigability of a stream, docs 
not Congress have the right to maintain its natural condition and pre- 
vent diversion? 

Mr. Hanson. I do not think so; not initially, not arbitraril3^ I 
think the riparian owner has the right to use the water to the extent 
that it does not interfere with the navigation of the stream. 

The Chairman. 1 think there are a number of cases to that 
effect 



PRESERVATION OF NIAGARA FALLS. 17 

Mr. Hanson. I have not seen them. 

The Chairman. How could Cono-ress exercise jurisdiction over nav- 
ioable streams unless it has the rioht to insist that they bo maintained 
in their natural condition without any decrease in the flow, or any 
diversion ? 

Mr. Hanson. Well, you mean Congress may establish the fact in 
advance that no water shall betaken from any navigable waters of the 
State? 

The Chairman. Can not Congress say what quantity of water shall 
be left in a navigable stream 'i 

Mr, Hanson. 1 do not think so. I do not think Congress can say 
that so much water diverted will interfere with navigation unless, as 
a fact, so much water is diverted that it does interfere with naviga- 
tion. Congress may declare that it will assume jurisdiction over the 
Niagara River and that it will control the taking of water from that 
river, but it may not say to John -Jones, " You can not take any water 
from that river," when he is entitled to take it under the conmion law. 

The Chairman. Do you tind any case in which the right of Congress 
to exercise that paramount jurisdiction has been questioned, or that 
any court has assumed to overrule Congress? 

Mr. Hanson. 1 do not find many cases where the question of the 
diversion of water has come up. It is mostly in regard to actual 
obstructions in the bed of the river. 

The Chairman, Would not the same prmciple apply? 

Mr. Hanson. The diversion of water is not an obstruction. 

The Chairman. You say the riparian owner has certain rights. If 
that riparian owner has the right to divert water he would have the 
right to put structures along the bank in the stream, would he not? 

Mr. Hanson. Yes. 

The Chairman. Would you say that also was a question that the 
courts could review ? 

Mr. Hanson. In the absence of specific legislation by Congress, yes. 

The Chairman. Suppose there is specific legislation by Congress 
and Congress has said that no obstruction may be placed in the river 

Mr, Hanson, No actual 

The Chairman. No actual oljstructions 



Mr, Hanson, That the courts would take judicial notice of. 

The Chairman. Has the Congress a right to say what is an obstruc- 
tion? 

Mr. Hanson. Y''es; I think so. 

The Chairman. Then may it not say what may tend to decrease the 
navigable quantity of the water? 

Mr. Hanson, I do not think so. I think the word "obstruction" 
includes those things which the courts would take judicial notice of as 
being obstructions — like a dam or pier or wharf. 

The Chairman. It would seem that if Congress has not that right to 
forbid diversions in navigable streams that in some instance the claim 
of the riparian owner would have been asserted in the courts and 
maintained. 

Mr. Hanson, I do not find any case where the question has come 
up, excepting in the Rio Grande River, and that is a somewhat differ- 
ent thing. 

The Chairman, In that case, the right of Congress over the non- 
navigable as well as the navigable portion is asserted in the opinion, 



18 PRESERVATION OF NIAGARA FALLS. 

and is not this portion of Niagara River where you propose to make 
the diversion a navigable stream ? Boats can go a mile or two below 
your location, can they not? 

Mr. Hanson. Yes; it is navigable — it is practically navigable below. 

The CiiAiKMAN. So you can not base your argument on the fact that 
it is not a navigable stream. 

Mr. Hanson, We have a right to divert water from navigable 
streams by virtue of riparian ownership. But we may not have the 
right to construct works out in the stream without the consent and a 
permit from the Secretary of War. 

The Chairman. Do you mean to say, then, that there is a difference 
between a wharf or obstruction built into the stream which merely 
impedes navigation in a part of the river and, on the other hand, the 
right to divert the waters of the river, which lower the level through 
the whole length of the stream? Does Congress have a right to act in 
one case and no right in the other? 

Mr. Hanson. That is not the question quite as 1 understand it. The 
riparian owner along the banks of a navigable stream has not an}^ 
right to the bed of that stream; he hasn't any right to erect structures 
in the bed of that stream, whether they interfere with navigation or 
not, but he has a right to the use of the waters of that stream. 

The Chairman. Where is the limit on that; may he draw off all the 
water ? 

Mr. Hanson. No; he can not interfere with the navigable capacity 
of the stream. 

The Chairman. What do j^ou mean by the navigable capacity of the 
stream ? 

Mr. Hanson. To draw off so much water that a stream that was once 
navigable is no longer navigable. 

The Chairman. Suppose the depth of water in a stream is 16 feet 
and that the diversion will take off 6 inches of that water. Suppose 
the boats that ply on that stream are ada])ted to the depth of 16 feet 
of water. Do you say that a person can draw off' 6 inches and maintain 
that it does not interfere with navigation ? Has not Congress exclusive 
right to determine what shall be the depth of the water there? 

Mr. Hanson. I do not think so. 

The Chairman. Well, what is the limit, then? 

Mr. Hanson. I think the courts 

The Chairman. Could you draw off 7 feet? 

Mr. Hanson. The courts can say whether the diversion is an inter- 
ference with the navigability of the sti'eam, because when Congress 
attempts to say that it is destroying a property right — the right to use 
the water of the stream. 

The Chairman. We have sought to determine what shall be the 
navigable depth of many channels. If the courts can go behind our 
action and determine what the depth shall be, it is giving to them a 
power of review which is destructive of the work we are doing. 

Mr. Hanson. Have you" ever attempted to prevent the diversion of 
water in those streams? 

The Chairman. In every case I know of, whether a navigable or 
a nonnavigable portion of a navigable stream, where the construction 
of a dam is sought, unless it be this case here, the parties have come 
here for consent to do so; the}^ have recognized that the legislative 
branch had exclusive control over navigable streams 



PRESEKVATION OF NIAGAEA FALLS. 19 

Mr. Hanson. 1 agree with 3^011 

The Chairman (continuing). And that all diversions and obstruc- 
tions are subject to the control of Congress, and can only be made by- 
its consent. 

Mr. Hanson. 1 had thought that the furthest courts had ever gone 
was to assert that Congress had plenary power over navigable rivers 
in the interest of navigation only, and that it might prevent obstruc- 
tions which would injure or retard navigation. 

The Chairman. Is it not within the power of Congress to absolutely 
determine as far as may be the depth of a navigable stream? 

Mr. Hanson. Yes; but you do not do it by this bill; you do not say 
anything about depth of navigation or anything else; you are preserv- 
ing the beauty of Niagara Falls, and that is all you are doing by this 
bill. I think j^ou can preserve Niagara Falls by taking condemnation 
proceedings and establishing a public park, and paying people for 
their investments and losses, but I do not think you can attempt to do 
it by exercising your general control over rivers in the interest of 
navigation, because there is no diversion that will interfere with nav- 
igation there. 

The Chairman. There might be a difference of opinion about that, 
whether it would interfere with navigation or not. It is evident that 
the diversion of 10,000 cubic feet per second must lower the level to 
some extent. 

Mr. Hanson. Theoretically a pailful of water will lower the level 
of the river, but having due regard to the great magnitude of the 
stream and the point of diversion and the place of discharging the water 
back again I think it would be a very arbitrary exercise of power, if 
you have it, to say that your legislation is in the interest of navigation 
and that no diversion shall take place. 

The Chairman. Of course, if any action is taken it is on the general 
ground of control over that river, whatever the basis for exercising 
that control may be, whether it is navigable, or because it is a bound- 
ai"}' stream or whatever it may be. 

Mr. Hanson. Pardon the question, but does this committee, and do 
you, Mr. Chairman, take the position that that control is general and 
not confined to the purpose of commerce? Do you say that you can 
control navigable waters for any purpose? 

The Chairman. We take the ground that we have control over 
navigable boundary streams. 

Mr. Hanson. Ln what respect does your control over boundary 
streams differ from your control over other streams except that the 
result is better accomplished b}^ treaty than by legislation? 

The Chairman, Perhaps it would not be necessary to select a better 
or the best way, if there is a way. I am unable to avoid the conclu- 
sion that there is a jurisdiction over a boundary stream different in its 
nature from that which exists over a stream which is domestic or 
entirely within the limits of the United States. So, although perhaps 
the most natural way would be to control the amount of water which 
flovsT^s and other questions pertaining to the stream b}^ diplomacy, legis- 
lation might be enacted to meet the situation. I do not want to break 
in on your argument, but those are questions which it seems to me are 
important in connection with this stream. 

Mr. Hanson. 1 think that that is our position on the legal proposition. 



20 PRESERVATION OF NIAGARA FALLS. 

The Chairman. In other words, that Congress has no right to pre- 
vent the diversion of water from a navigable stream unless it interferes 
with the existing interests of navigation, which must ultimately be 
controlled b}" the courts. 

Mr. Hanson. That is not quite it. 

The Chairman. How can 3^ou avoid that position? 
• Mr. Hanson. The objection to this bill is that the sole object of it is 
to control the waters of a navigable stream for the further preserva- 
tion of a site — for the preservation of Niagara Falls. There is no 
attempt to assert control of those waters in the interest of commerce. 

The Chairman. Suppose Congress should pass a law upon the sub- 
ject. Do 3'ou mean to sa}^ that you could go behind that law? 

Mr. Hanson. It would depend upon what the law was. 

The Chairman. If Congress has jurisdiction, may it not exercise it, 
whatever the immediate object is? 

Mr. Hanson. You have to get your idea of the law from the title 
and the law itself; you are not bound by the title. 

The Chairman. Suppose you read the title. 

Mr. Hanson (reading): 

For the control and regulation of the waters of Niagara River, for the preservation 
of Niagara Falls, and for other purposes. 

But there is nothing in the act which shows that it is for other 
purposes. 

The Chairman. Yes; there is a prohibition of the importation of 
power from Canada. That is another purpose. 

Mr. Hanson. Y^es. 

Mr. Burgess. Do you know of a case in which a court has attempted 
to decide the precise question of whether or not Congress can arbi- 
trarily control the diversion of water from a navigable stream? 

Mr, Hanson. I do not know of such a case. 

Mr. Burgess. The cases you speak of are cases in which the right 
to use the water was a question which arose and was decided by the 
courts in the absence of any legislative action on the part of the 
Government? 

Mr. Hanson. In this Rio Grande case it was an action by the Govern- 
ment against an irrigation companj^ that was diverting the waters of a 
navigable stream, and there the courts held that it was a question of 
fact whether the diversion did interfere with the navigable capacity 
of the stream and it proceeded on another theory — that the diversion 
was in the territoiy of New Mexico, the ownership of which was in 
the Federal Government, and that the Federal Gov^ernment had a right 
to the undiminished flow of water through its own lands. That is good 
common law. Therefore it could step in in that case. 

Mr- Burgess. You do not contend, do you, that that touches the 
case I cite — of whether Congress has plenary power over a navigal)le 
stream to assert that no water shall be diverted from a navigable 
stream ? 

Mr. Hanson. I do not think that principle has ever been turned 
into a revocable license at the will of Congress. 

Mr. BuiwESS. 1 am asking for information. 

Mr. Hanson. I do not know. 

Mr. Bedk. I am not a lawyer; I am simply sitting as a juror in this 
case. As I understand it, you contend that the diversion of this 
water is a property right? 



PRESERVATION OP NIAGARA FALLS. 21 

Mr. Hanson. Yes; by virtue of ripavif^n ownership. 

Mr. Bede. And that this bill would confiscate a property right? 

Mr. Hanson. Yes. 

Mr. Alexander. From whom did you get that right? 

Mr. Hanson. By virtue of the ownership of the bed of the stream, 
and that was recently up in the case of a company known as the 
Schoelkopf Company. It had never acquired a use to the waters of 
Niagara River. In 1896 because of some threatened action at that 
time it did procure riparian rights, which confirmed their right to the 
use of the water of Niagara River. Subsequently the assessors assessed 
that right along with their other property as real estate and they went 
into the court and maintained it was a franchise and could not be 
assessed as real estate, and our court of appeals has held that its right 
to take water from the river did not depend upon that; that it was a 
corporeal hereditament which pertained to the bed of the ri\rer and 
the bed of the stream, and that is the doctrine that has been maintained 
in the United States courts. 

Now, you turn around and say by this legislation you have not any 
property right there any more; that if you want a drop of water out 
of that river you must come to Congress and get a revocable permit, 
and you destroy millions of dollars of property. 

The Chairman. You have not commenced work there yet, have you? 

Mr, Hanson. Ten years ago there w^as an excavation made for the 
canal at the intake; there was about half a mile dug there, and at that 
time it was proposed that the canal discharge over the escarpment of 
Niagara, and there has been about half a mile excavated there; subse- 
quently the plans were changed so the discharge would be at Devil's 
Hole. There have been about $100,000 spent there so far. 

Mr, Dovener. Then 1 understand you to claim that the State has no 
limit, that the State can control that without limit 

Mr, Hanson, I beg your pardon. 

Mr. Dovener. And can grant a franchise there without limit? 

Mr. Hanson, Possibly it might, but it won't. The State of New 
York has repealed all dormant charters. 

Mr. Dovener, Suppose the State has that right, the right you 
claim the}^ have, to permit a portion; wouldn't it be unlimited? 

Mr, Hanson. I think the right to take water from the Niagara 
River does not depend upon State grants. If a man owns a bank or 
any portion of the bed of the stream he does not have to go to the 
legislature to ask for power to take water from the river; it is just as 
much a propeity right as the ownership of his home. 

Mr. Dovener. Then he can take all, I suppose, according to your 
claim, and commerce and navigation 

Mr. Hanson (interrupting). No, sir. 

Mr. Dovener (continuing). Have no remed}^? 

Mr. Hanson. No; we can not take it to such an extent as will impair 
navigation. 

Mr. Dovener. That is what I asked you. Where is the limit? 

Mr. Hanson. It is for the courts to decide. 

The Chairman. Where is the limit? 

Mr. Dovener. The State courts. 

Mr. Hanson. If the State has concurrent jurisdiction with Con- 
gress; but when Congress acts, then the State has no power to act — 
when Congress once asserts its paramount authority. 



22 PRESERVATION OF NIAGARA FALLS. 

The Chairman. You maintain it is still for the courts to decide 
whether the diversion impairs navigation. 

Mr, Hanson. Yes; upon a suit instituted by the Attorney-General 
of the United States. 

The Chairman. You can see, I think, what sort of a conclusion you 
would come to on that. There would be navigation if you have water 
to tloat logs merely. Has not Congress the absolute right to deter- 
mine the degree of navigation there, whether it shall be a deep chan- 
nel or a shallow channel, whether there shall be 50 feet or 30 feet or 
12 feet of water; has it not a right to insist upon the gi'eatest possible 
depth ? 

Mr. Hanson. I think Congress would have a right in the interest of 
navigation to blast out the channel, and that the result of that work 
would interfere seriously with the power companies now operating 
there, and that they would be without I'eniedy. 

The Chairman, In other words, Congress has the right to expend 
money to dredge a channel to a greater depth, but it has not the right 
to prevent the diversion of the waters flowing in the natural manner 
in a channer^ 

Mr. Hanson. That is somewhat like it. That is, the navigable 
capacity of the Hudson is one thing; the navigable capacity of the St. 
Lawrence is another thing; the navigable capacity of the Rio Grande 
is another thing, and the Niagara River is another thing. Congress 
has the right to insist, the Government has the right to insist, that 
the navigable capacity of those respective streams be maintained in 
their natural state. The Goverment may step in and may increase or 
diminish that navigable capacity if it sees lit, and a riparian owner has 
no redress; but the riparian owner still has the right to divert and use 
the waters of that stream. It is a property right centuries old, and 
subject to be denied only by the paramount rights of the Government 
in the interest of connnerce and navigation. 

The Chairman. It is of considerable importance if your contention 
can be sustained. If that principle that you have enunciated is correct 
the riparian owner has the right to absolutely withdraw all the waters 
from a navigable stream, 

Mr. Hanson. I do not think so; I do not say so. 

The Chairman, You do not say he has, but j^our argument leads to 
that conclusion. If Congress has any right over navigable streams it 
is the right to say what depth there shall be and what flow of water, 
high or low, and if you say the maximum depth Congress lixes can be 
diminished by diversion you establish the principle that all the waters 
of the stream can be drawn out. 

Mr. Hanson. No, I do not think so, Mr. Chairman. 

Mr. Alexander, Navigability is a fact? 

Mr, Hanson. Yes. 

Mr. Alexander. And that fact is left to the jurisdiction of the 
courts to determine? 

Mr. Hanson. Yes, sir. That has been held in the Federal courts; 
it has been held in the State courts. 

Mr. Ellis. In other words, your contention is that the State juris- 
diction is in the courts and not in Congress? 

Mr. Hanson, To determine whether a diversion, which is a property 
right, interferes with the navigable capacity of that stream in its 
natural state. 



PRESEEVATION OF NIAGARA FALLS. 23 

Mr. Ellis. Even thoug'h the effect be to lower the surface of the 
water ? 

Mr. Hanson. Three inches or 4 inches. Does it interfere with the 
principle of the navigability of that stream in its natural state because 
the other man, the riparian owner, has a right to that water? 

Mr. Ellis. Then, the ditierence between your view and the view of 
the chairman would be as to the extent of the diversion. Somewhere 
you would admit that there would be jurisdiction to prevent such a 
diversion as would diminish the depth of the water. 

Mr. Hanson. Yes; I think Congress has ample power to assert its 
control over navigable waters. It may enact that it will deepen the 
channel of Niagara; it may pass a law that it will make the falls navi- 
gable in some way or other, and it has the right to do it; but it can 
not make a revocable license of our property right to use the water of 
that stream. 

Mr. Burgess. To what extent do these riparian rights go under 
common law — to the extent of using- the water for manufacturing 
purposes? 

Mr. Hanson. Yes; for manufacturing and domestic purposes. It 
is well established in our own State under the Federal authorities, and 
1 guess in every State in the Union, that the right extends to the use 
of the water for all purposes. 

Mr. Davidson. Do you claim you have a right as a riparian owner 
to take water from a stream, divert its course, and restore it to the 
stream at a lower point as against the riparian owners below you? 

Mr. Hanson. Not to their injury, but under our charter the State 
of New York gives us the power to condemn the rights of the inter- 
vening owners, and our charter has been held constitutional recently; 
we have been held to have power to do that. Otherwise we could 
simply take the water on our land and discharge it on our own 
land without leading it around some other fellow's land; .that would 
be our natural common-law right. 

Mr. Davidson. But the legislature has given you as one riparian 
owner a superior right over another riparian owner on the same 
stream. 

Mr. Hanson, l^es. 

Mr. Davidson. And the legislature of your State has established the 
principle that one individual can condemn the property of another 
individual and take it for his own use? 

Mr. Hanson. Our company is organized for a public purpose, for 
that pul)lic purpose it ma}^ take the rights of lower owners. 

Mr. Davidson. It has given your company the right of eminent 
domain as against other power companies chartered under the laws of 
the same State? 

Mr. Hanson. No; we do not interfere with any other power com- 
panies. 

Mr. Davidson. Are not there other power companies interested 
below you ? 

Mr, Hanson. Yes. 

Mr. Davidson. They are riparian owners, are they not? 

Mr. Hanson. Yes. 

The Chairman. Is there a limit in your charter to the amount you 
may divert from the river ? 



24 PRESERVATION OP NIAGARA PALLS. 

• 

Mr. Hanson. There is not; it is unlimited. We have, however, 
alwa3^5> expressed a willingness to agree to a reasonable limitation. 
We think there ought to be a reasonable limitation. 

Mr. DovENER. You understand that riparian owners below you 
have the right for commerce and navigation to use that stream? 

Mr. Hanson. Oh, 3'es. 

Mr. DovENER. Does the legislature of New York give you any 
right, without compensating those people, to destroy the navigable 
section of the river? 

Mr. Hanson. Oh, no; we do not destroy it. 

Mr. DovENER. If jT^ou take enough water you destroy it. 

Mr. Hanson. No; not over Niagara Falls; it is pretty hasty naviga- 
tion that you would have there. 

The Chairman. How far is it navigable below the intake? 

Mr. W^ORTHEN. There is only very little navigation below, down to 
Schlosser Dock, some 2 or 3 miles below our intake; but only a few 
little excursion boats run below that. 

Mr. Hanson. Does commerce go down there at all? 

Mr. WoRTiiEN. No; I do not think so. No commerce — except excur 
sion boats still continue to run there. 

The Chairman. The stream, however, is readily navigable down 
that far, is it not? 

Mr. WoRTHEN. Below the intake of our canal it would not be navi- 
gable for boats drawing over 10 feet. It is navigable to the point of 
our intake for boats drawing about 12 or 1-1 feet. 

Mr. Alexander. There is a project to make it navigable to Schlos 
ser's Dock; to have 14 feet to that point. 

Mr. Jones. I understand you claim this bill does not regulate or 
pretend to regulate navigation? 

Mr. Hanson. No, it does not. It has for its object the preservation 
of Niagara Falls by preventing diversion f i-om the Niagara River by 
people who are by common law entitled to the use of the waters, and 
by prohibiting the importation of power into this country. The result 
of the bill will be to put a good many hundreds of millions of dollars 
of our money into the Dominion of Canada. That power is there and 
they are developing it, and if we can not make stufi' in this country 
we will go there and get cheap power; that will be the result. Canada 
does not propose to legislate against the diversion of water for the 
purpose of getting power. 

Mr. Bishop. Let me ask you one question. Your contention is that 
Congress has no right to legislate for the preservation of the falls as 
the falls? 

Mr. Hanson. That is my contention; that if you have a right to do 
so in the case of Niagara, 3'ou have a right to go all over the country 
and legislate in respect to every navigable river of any State wherever 
you may find a waterfall, and that at a time when the great develop- 
ment of this countiy is the development of water power. It is only a 
few years ago, in the memory of some of you, when the power and 
the machinery were alwa3's to be found together, the old mill wheel, 
which created the power, and the machinery alongside of it. Then 
there came a time when the potentialit}^ of power, the coal, was taken 
to the factory, and it has only been a few 5'ears that power could be 
carried two or three or five or six hundred miles to the factor3^ The 
result is that every water power in the world is being developed, and 
just at this stage j^ou propose to step in and say that this great water 



PEESERVATION OF NIAGARA FALLS. 25 

power at Niagara may not be used; that Canada may use it, but that 
we can not use it. 

Our position is that you can have both the scenic beauty at Niag-ara 
and you can have the "hundreds of millions of dollars a year of com- 
mercial value from Niagara, and we can demonstrate it if you give us 
a chance. 

Mr. Ransdell. I would like you to demonstrate that. 

Mr. Hanson. Our engineers will demonstrate it. 

Mr. Bishop. Then you contend you have the right and we have not 
the right to prevent the absolute extinction of the falls by taking- 
away water above and putting it back again below ? 

Mr. Hanson. If that diversion is going to destroy navigation, if the 
taking of the water would impair the natural capacity of Niagara for 
navigation, then you could prevent it by legislation directed to that 
purpose. 

Mr. Bishop. Our authoritj^, then, the authority of the General 
Government, is limited wholly and solely to the matter of navigation? 

Mr. Hanson. Yes. 

The Chairman. And further, according- to your statement just 
made, we do not have the right to exercise any authority at all until 
something is to be done wliich destroys the navigability. 

Mr. Hanson. No; which tends to impair it. 

The Chairman. Tends to impair it? 

Mr. Hanson. The navigable capacit3^ 

The Chairman. Do I understand that, then, to be your view of the 
law? 

Mr. Hanson. Yes, sir. 

The Chairman. That we onlj^ have authority to act when something 
is being done which tends to impair the navigable capacity? 

Mr. Hanson. Which will impair the navigable capacity of the 
stream. 

The Chairman. Tends to impair? 

Mr. Hanson. Or will impair. 

The Chairman. Suppose 3'ou take out a third of the flow of a river 
that has a discharge of 1S^J,000 cubic feet per second? Would not 
that tend to iiupair the navigable capacity of the stream ? 

Mr. Hanson. I do not think so. 

Mr. Lawrence. If I understand Mr. Hanson's contention, in that 
case there would be a question that would have to be determined by 
the courts. 

Mr. Hanson. Yes. 

Mr. Lawrence. As to whether taking away a third of the stream 
would impair the navigation? 

Mr. Hanson. Yes. 

Mr. Ransdell. He says he can demonstrate that the amount of 
water desired can be diverted and still the scenic beaut}^ can be pre- 
served. Let him make that demonstration. 

Mr. Alexander. You will hear plenty of that before you get 
through. 

Mr. Ransdell. You can not do it all in an hour. 

Mr. Hanson. It has been suggested here that in order to get fur- 
ther information this committee appoint a subcommittee to take testi- 
mony on this subject and in that way fully inform themselves. The 
general opinion throughout the country from people who have never 
seen Niagara Fails, and never will see them, is that the falls are ruined 



26 PRESERVATION OF NIAGARA FALLS. 

now. As a matter of fact, I think no human being can tell whether 
water is being diverted from the falls or not by looking at them. 
There is no hasty legislation needed in regard to thi.s, for there is no 
plan being developed that will take any more water from the falls in 
two or three years. 

The New York legislature has repealed every dormant charter. You 
have heard one side of it — the sentimental side — from people all over 
the United States. You have heard the newspaper side. We want a 
chance to demonstrate before this committee by testimony, by compe- 
tent evidence, the other side, which is the commercial side, and in that 
connection I can say that we exist by commerce. Gentlemen, your 
committee exists for that purpose; we liv^e upon it. 

The Chairman. Do you care to speak further? 

Mr. Hanson. I think not. The histor}^ of the company is some 
thing 

The Chairman. When was your charter granted? 

Mr. Hanson. I can save time by having this printed. This is a his- 
toid of the company and our views of the law (referring to brief 
which follows Mr. Hanson's statement). 

The Chairman. When was the charter granted? 

Mr. Hanson. In 18!»1. 

The Chairman. To what company? 

Mr. Hanson. To the Niagara County Irrigation and Water Supply 
Company. The charter contained a self -executing clause that it would 
be forfeited if work was not connnenced within live years. Work was 
commenced within two j^ears, and work of some sort, surveys, or the 
acquisition of property rights, or something else, has continued from 
that time until to-day. 

The Chairman. Are you able to state how much has been actually 
expended in the way of construction? 

Mr. Hanson. I should have to ask my colleague. 

Mr. WoRTHEN. In the neighborhood of $175,000 for surveys, lands, 
etc. ; but altogether there has been about $400,000 actually expended 
up to this time. 

Mr. Jones. How much water do you expect to use for irrigation 
purposes? 

Mr. Hanson. None at all; the charter does not give us power to 
generate electricit}^ at all. It was never thought possible to transmit 
electric energy. 

Mr. Jones. No; what I am asking you about is irrigation. 

Mr. Hanson. No; we would not use any. I do not think it would 
be feasible or practicable. I think it is well irrigated up there, well 
watered. 

Mr. Hanson submitted the following brief: 

Before the Committee on Rivers and Harbors in the House of Represtntatives. In 
the matter of lejjislation now pending before the Congress of the United States of 
America, the object of which is to control tlie waters of the Niagara River, for the 
preservation of Niagara Falls, etc. 

This brief and argument are submitted by "Niagara County Irrigation and Water 
Supply Company." 

FACTS. 

The Niagara County Irrigation and Water Supply Company was created and 
O'-ganized by a special act of the legislature of the State of New York, known as 
chapter 259 of the laws of 1891, entitled, "An act to incorporate the Niagara County 
Irrigation and Water Supply Company." 



PRESERVATION OF NIAGARA FALLS. 27 

A copy of the company's charter is annexed hereto. 

The purposes of its creation are the maintenance of a public waterway from a point 
in tiie Niagara River, from the west bank of the Cayuga Creek to the east line of the 
mile reserve, so called, as may be most convenient. * * * The supplying from 
said waterway of jiure and wholesome water to the village ot Lewiston and the inhabi- 
tants thereof, and to any other city or village now or hereafter located in the towns 
of Niagara, Lewiston, and Porter, in the county of Niagara, and to the inhabitants 
thereof; the storage, accunuilation, conduct and supjfly, lease and sale of water for 
fire, sanitary, municipal, mechanical, mercantile, manufacturing, domestic, com- 
mercial, or agricultural purposes, and for the purposes of irrigation. 

The company is authorized, for the purposes of its incorporation, to take water 
from the Niagara River between the points hereinbefore specified and to discharge 
such water into the Niagara River at such points near or adjacent to the towns of 
Lewiston or Porter, as it may select. 

It is authorized to intercept and divert the flow of waters from the lands of riparian 
owners and from persons owning or interested in the waters which may be necessary 
for the purposes of the corporation. 

The general powers, duties, and liabilities of the corporation are, by its charter, 
regulated by the following statutes of the State of New York: 

General corporation law, stock corporation law, and that section of the trans- 
portation corporations law which governs the organization and incorporation of 
waterworks corporations. 

Section 10 of the company's charter requires that the work of the corporation shall 
be actually and in good faith commenced within five years from and after the date 
of the passage of the act; otherwise its corporate rights and powers should cease and 
determine. 

In this connection the minutes of the company show that the organization was 
perfected very shortly after the passage of the act, and by-laws for its government 
adopted. From 1891 down to 1893 the records of the company show that there were 
efforts made to begin the actual work of developing the company's franchise, which 
culminated in 1893 in a contract between the company and one William T. Love, by 
which, for certain considerutions. Love was to complete the work outlined in the 
company's charter. Directly thereafter he actually did commence to acquire options 
upon some property and to purchase other pieces of property and to excavate for the 
canal referred to in the charter. This excavation was commenced in 1894. The 
proofs of this are articles pul)lished in the daily press of that year and affidavits on 
file with the company of numerous residents of Niagara County who were witnesses 
of the work. The company has since its creation paid its annual franchise tax 
each year to the comptroller of the State of New York, as well as the general taxes 
for city, municipal, and school purposes. 

In the year 1896 the contract with William T. Love was terminated by reason of 
his failure to prosecute and complete the work of excavating the canal. A reor- 
ganization of the company was then had, the amount of its capital stock was fixed, 
fully subscribed for, and paid in. Efforts were made to prosecute the work by the 
company on its own account, and considerable work in the nature of excavation was 
actually done. At this time the jilans of the company contemplated a canal having 
its mouth at or near Cayuga Creek, on the Niagara River, and discharging over the 
escar[)nient at Lewiston. The later excavations that were made by the company 
were made in the vicinity of Lewiston. This work was abandoned during the suc- 
ceeding year, several additional surveys were made, and finally the route of the canal 
was changed so that the discharge was at the Devils Hole property, as shown on the 
maps filed before this committee by the engineer. During all the existence of the 
company, and down to the jiresent time, it has maintained an office force and offices — 
one in Buffalo and one in New York City. Proceedings for the acquisition of a right 
of way by condemnation are pending, and options for other parts of the right of way 
have been acquired. 

There is no doubt, therefore, that the provisions of section 10 of the charter of the 
company have been complied with, and that it has not forfeited its rights and powers. 

Some years ago the attention of the interests that are now in control of the prop- 
erty was called to this charter and to the rights given thereunder, and from that time 
until within the past few months negotiations have been pending for the sale on one 
hand and the acquisition on the other of the franchise of this company. 

In the opinion of the counsel representing those interests that are now in control 
of the company, there appeared to be a constitutional objection to the validity of 
the company's charter, in that, since the waters of the Niagara River were public 
anil the usufructary interest therein was public, they were public property of the 
State of New York, which could not be granted for any private or local purposes 
without the affiirmative vote of two-thirds of the members of each branch of the 



28 PRESERVATION OF NIAGARA FALLS. 

legislature of said State. The charter in question did not on its face, and did not in 
fact, receive such two-thirds vote. At the time this objection was raised the ques- 
tion was then pending in tlie courts of tlie State in a proceeding brouglit by the corn- 
pan}' against the College Heights Lands Company to acquire lands for its right of 
way by condemnation. At the special term the question was decided against the 
defendant and in favor of tlie petitioner. An api)eal was taken to the appellate divi- 
sion of the supreme court of the fourth department of the State of New York, which 
was argued at the January, 1906, term. At the opening of the term in ]\Iarch, 1906, 
by a unanimous decision, the court affirmed the order of the special term. The 
result of this decision is to estal)lish unmistakably the constitutionality of the charter 
of the company. Since the case has not been reported, a portion of the opinion of 
Mr. Justice Williams is herein quoted: 

"There is no doubt that the purposes of the corporation are local and private, so 
that the question is narrowed down to tlie inquiry whether by sections 4 and 6 of the 
act there was an appropriation of pul)lic property for the purpose of the corporation. 

" 1. The State has no jjroperty or ownership in the waters of Niagara River within 
the provisions of the constitution in question, although it has dominion over the 
same and power to regulate the nse and diversion thereof and encroachments 
thereon as navigable waters of the State. 

"Sweet V. City of Syracu.-e, 129 N. Y., 331-334. 
"Waller against State of New York, 144 N. Y., 579-599. 

" So far, therefore, as the act may be said to appropriate the water of the river, it 
does not violate the provisions of the constitution in question. 

"2. The only question remaining is whether the act attempted the construction 
of works, etc., necessary to take the waters from the river so as to appropriate any 
property in the bed of the river in violation of said constitutional prtn'isions. The 
State was in a certain sense the owner of the bed of the river. It held the property 
not as a proprietor, but as a sovereign in trust for the public. 
"Saunders v. H. R. R. Co., 144 N. Y., 75-85. 

"There is a view taken of such a case as the one in question which seems reason- 
able. That the legislature does not transfer any title to the bed of the river to the 
corporation, and does not even license the bed thereof, but merely confers power 
upon the corporation to do what is necessary to carry out its purposes. It does not 
confer any right upon the corporation to take or make use of the property of other 
persons or the State until it has acquired such property in a legal way. 

"Matter of N. Y. & L. I. Bridge Co. 90, Hun., 312-326. Sc. 148 N. Y., 540-555. 

"In this view the act is not to be regarded as appropriating any property of the 
State to the use of the corporation in either the water or the bed of the stream in 
violation of the constitution. It has designated the general powers of the corpora- 
tion and if any property rights are required from the State involving the appropria- 
tion of property, they must still be acquired in the manner required by law under 
the constitution. We do not think a necessary construction of the act requires us to 
hold that it violates the constitutional provisions in question." 

This opinion is of importance at this time in view of the fact that there has been 
filed with your committee the report of the sptecial committee of the Chamber of 
Commerce of the State of New York in reference to the diversion of the waters of the 
Niagara and filed with such report and made a part thereof is the opinion of Hon. 
George W. Stevens, president of the Jamestown Bar Association, which is somewhat 
lengthy, and the conclusion of which opinion is that the charter of the company in 
question is void because it did not receive the afiirmative vote of two-thirds of the 
members of each branch of the legislature of the State of New York. 

The company is the owner of a considerable portion of the bed of the Niagara River 
in the vicinity of the Cayuga Island, having received title thereto from one Long, 
who was the patentee of the State of New York. Its rights therefore to take and 
use the waters of the Niagara depend — 

1. Upon the legislative grant. 

2. Upon its ownership of the bed of the Niagara River and the uplands adjacent 
thereto. 

That by virtue of its ownership of the bed of the Niagara River and the uplands 
adjacent thereto it is entitled to the use of the waters flowing over the portion of the 
bed of the river which it may own as a corporeal hereditament independently of 
any legislative grant was established in this State recently in the case of the People 
ex rel. Niagara Falls Hydraulic Power and Manufacturing Co. v. Smith, 70 App. 
Div., 543; 175 N. Y., 469. 

This case likewise is of importance in view of the fact that Appendix A of the 
report of the American members of the Inteiiiational Waterways Commission, 
which has been filed with your committee, is an oiiinion by Attorney-General Han- 



PEESEEVATION OF NIAGAEA FALLS. 29 

cock, of the State of New York, dated in 1895, in which he asserts a contrary 
doctrine. 

This opinion of the attorney-general, of coutse, antedates the decision above 
referred to, but the decision, at least, was several years old and was accessible to the 
members of the commission at the time their report was made. 

In the printed report of the American members of the International Waterways 
Commission, hereinbefore referred to, this company is mentioned on page 8 in the 
following language: 

"Another company, the Niagara County Irrigation and Water Supply Company, 
has done some work and claims that its charter has thus been preserved, but it has 
diverted no water." 

It is again mentioned in Appendix D, on page 19. 

KIGHTS OF THE COMPANY. 

The concession by the Waterways Commission that the company has done some 
work implies that it has expended some money. In fact, the expenditures made to 
date are something in the neighborhood of .$400,000. From the view point of good 
morals, at least, it should not be deprived of the benefits of those expenditures with- 
out compensation. 

The proposed legislation of Congress, if constitutional, while of course it does not 
and can not repeal the charter of the company, would most effectually defeat the 
purposes of iis creation. 

Congress attempts, by its proposed legislation, to declare that the right of riparian 
owners to the use of the waters of the Niagara River depends upon the revocaV)le 
license of the Federal Government. This, it is respectfully contended, is without 
the power of Congress, and is an appropriation of well-known, well-established prop- 
erty rights without an attempt to make compensation therefor. 

The rights of riparian proprietors are greater or less depending upon whether the 
ownership includes the bed of the stream or not. 

1. In the case of a stream where the title to the bed and to the banks is in a single 
proprietor, he has the exclusive right to the use of the water flowing over his lands, 
providing always that he does not injure the rights to the use of the water of the 
lower owner. If such a stream is navigable in fact, then his rights are held subject 
to certain rights of the public therein. 

2. Eiparian owners along banks of public navigable streams, the title to the bed of 
the stream of which is in the State or General Government, likewise have certain 
vested and valuable rights to the use of the stream, but in such case those rights 
are subject to the paramount rights of the State to utilize the water of the stream for 
the public use and to the paramount right of the Federal Government to the control 
of the waters thereof in the interest of interstate and foreign commerce. Those 
riparian rights, however, are property and are valuable, and, although such property 
must be enjoyed with due subjection to the rights of the public, it can not be arbi- 
trarily or capriciously destroyed or impaired. It is a right of which, when once 
vested, the owner can only be deprived in accordance with established law, and, if 
necessary that it be taken for the public good, upon due compensation. 

Yates V. City of Milwaukee, 77 U. S., 497. 

Niagara Falls H. P. Mfg. Co. v. Sweet, 70 App. Div. N. Y., 543; 175 N. Y., 469. 

The position of the company is — 

1. That it concedes the power of Congress over the waters of the Niagara River, 
and that such powers are paramount to those of the State and to its own rights, but 
that they can not be exercised arbitrarily to defeat its vested property rights. 

2. That its rights to the use of the Niagara River are not dependent upon permis- 
sion from Congress or revocable license from the Federal Government, but have 
existed and do exist as an incorporeal hereditament to its land, wliich he may Ije 
compelled to yield or surrender for the public purposes of navigation and in the 
interests of interstate and foreign commerce. 

3. That the paramount right of the State is to be exercised with due regard to the 
vested property rights of riparian owners, and that the rights of riparian owners are 
to be exercised subject to the public right of navigation. 

4. That the company has power to erect upon that portion of the bed of the river 
to which it owns the fee such structures as may be necessary for its beneficial use 
and enjoyment of its rights, providing only as a matter of fact that such structures 
do not interfere with na\ igation. That, if they do interfere with navigation, by 
virtue of its ownership of the l)ed of the stream, it may not be deprived of making 
such structures and it can not be required to remove them without compensation. 

p N F — 06 3 



30 PRESERVATION OF NIAGARA FALLS. 

This is in view of the fact that navigable waters are limited to the line along the 
shore, in the case of navigable fresh waters, at which naviga])ility ceases. (Gould on 
Waters, 3d ed., sec. 86, and cases cited.) 

The rule, possibly, would be otherwise if title to the bed of the stream were in the 
State or the Federal Government. 

THE RIGHTS OF THE FEDERAL GOVERNMENT AND OF THE STATE, RESPECTIVELY. 

The rights of the Federal Government over navigable waters are not exclusive, 
nor are the rights of the State to control the waters of navigable rivers within its 
borders surrendered by the clause in the Federal Constitution which gives Congress 
the power to regulate interstate and foreign commerce. 

The State has anii)le power to control the use of navigable rivers within its bor- 
ders, and its acts are conclusive until Congress sees tit to act. So long as Congress 
is dormant the acts of the State are valid. When Congress, however, once asserts 
its control over navigable water, then the acts of the State may be nullified by Con- 
gress. The shores, however, of navigable waters and the soils under them were not 
granted by the Constitution to the United States, but were reserved to the States, 
respectively. 

Pollard V. Hagan, 3 Howard, 212. 
The power vested in General Government to regulate interstate and foreign com- 
merce involves the control of the waters of the United States which are navigable in 
fact so far only as it may be necessary to insure their free navigation when, by 
themselves or their connection with other waters, they form a continuous channel for 
commerce among the States or with foreign countries. 

Escanaba Transportation Co. v. Chicago, 107 U. S., 678. 

This, I think, is the extent to which the Federal authority over navigable rivers 
may be extended. Congress can only control the use of navigable streams in the 
interest of navigation or commerce. If it attempts to act for any other purpose in 
the matter of regulating the use of the waters of a navigable river, to the detriment 
of the rights of riparian owners, then its acts are unlawful and unconstitutional. 

This leads to some consideration of the nature and character of the bill now pending 
before this committee. 

It does not attempt to declare that the diversion of waters from the Niagara River 
are an obstruction to navigation there. The whole object of the bill is to preserve 
the beauty of the Niagara Falls. Now, the Federal Government can accom])lish this, 
probably, by taking steps to establish a public park and by the acquisition of prop- 
erty and property rights to preserve the beauty thereof. It can not do so by any 
power under the Constitution or under the decisions of the court by any attempt to 
regulate the waters of a navigable stream, because its rights to the use of these 
waters is not exclusive, but rather to be enjoyed, used, and exercised in common 
with the rights of riparian owners. 

The question whether a diversion of the waters from the Niagara River is an 
obstruction to commerce, is one of fact, to be established, like any other fact, by proper 
proceedings in equity under the direction of the Attorney-General of the United 
States and when such proceedings are instituted then it becomes a question of fact 
whether the act sought to be enjoined is one which fairly and directly tends to 
obstruct, interfere with, or diminish the navigable capacity of the stream, and it does 
not follow that the courts would be justified in sustaining any proceedings so brought 
to restrict any ai)propriati()n of the waters of a navigable stream. The question is 
always one of fact whether such an appropriation substantially interferes with the 
navigable capacity of a stream within the limits where navigation is a recognized 
fact. 

United States v. Rio Grande Dam and I. Co., 174 U. S., 709. 

And in any such proceeding when the State invokes the aid of a court of equity it 
is subject to the same rule applicable to ordinary suitors, and an injunction will not 
be granted upon its application unless injury, actual and material and not merely 
fanciful, is shown. 

People V. Mould, 37 App. Div., N. Y., 35. 
The above was a case where a riparian owner on the Hudson River erectsMl a wharf 
upon his uplands without having ol)tained a grant from the State of the soil under- 
neath the waters and thereby created a purpresture. An action was brought by the 
State of New York, as plaintiff, to com[)el the defendant to remove the wharf, etc. 
It appeared upon the trial that the structure did not affect navigation or any public 



PEESERVATION OF NIAGARA FALLS. 31 

right or interest and was not in fact a nuisance, and that therefore its continuance 
would not be restrained as a nuisance or its removal directed. 

The plans of the company are to take water from the Niagara River at La Salle, at 
which point navi.uation practically ceases, to lead such water round the waters of 
Niagara Falls and the rapids of Niagara, where navigation is impossible, and to dis- 
charge the water into the river at the whirlpool above the point where navigation 
in the lower river begins. It is scientifically true that the withdrawal of water at 
La Salle will not interfere with navigation above that point, and since the water is to 
be returned to the river above where navigation is resumed, it naturally follows that 
there will be no obstruction or interference to navigation below. 

The company, therefore, contends: 

1. That it has the right, by grant from the State and by virtue of riparian owner- 
ship and ownership to the bed of the Niagara River, to use and divert tiie waters of 
the river for manufacturing jiurposes, and such right must yield only to the paramount 
right of the Federal Government to control such waters in the interest of navigation. 

2. That whether its proposed diversion will diminish or impair the navigable 
capacity of the Niagara River, is one of fact to be determined by proper legal pro- 
ceedings instituted by or on Vjelialf of the Attorney-General of the United States. 

3. That the proposed legislation by Congress to control the waters of the Niagara 
River for the purpose of preserving the beauty of Niagara Falls is not in the interest 
of improving or preserving the navigability of Niagara, and is not within the power 
of Congress and is, therefore, unconstitutional, since, if exercised, it would effectually 
destroy the vested property rights of this company and other companies, without 
due process of law. 

The legislation proposed by Congress seems to be in response to a very general 
public clamor for the preservation of Niagara Falls, which is uninformed and irre- 
sponsible. The power companies contend that they can use all of the waters which 
they are now authorized to use, assuming that a reasonable limitation is ]»laced upon 
the rights of this company, which it is willing to concede, and that the people at 
large may have the inestimable advantage of a great industrial activity and prosper- 
ity which would follow, and at the same time the substantial beauty of the falls or 
cataract could be maintained. 

This, we do not state carelessly, but are prepared to prove the same by abundant, 
scientific proof. There is no need, at the present time of hasty and ill-advised legis- 
lation, the principal effect of which would be to seriously injure property and prop- 
erty rights and the securities of the company now operating at Niagara Falls or 
authorized to operate. The State of New York has repealed every dormant charter 
at Niagara Falls and there is no danger that further charters will be granted in face 
of the legislation recently passed, the object of which was to prohibit any further 
grants to use the waters of the Niagara River. There is no company now operating 
there or authorized to operate that can or will install works for the diversion of 
waters within a considerable period of time. And there is ample time for the Gov- 
ernment to make a more thorough investigation into the subject with the idea of 
preserving the vested interests of the companies as well as the beauty of the Falls. 
And there is a real economic necessity for such action. 

The power of the future, concededly, will be electric energy. This is made possi- 
ble by reason of the fact that within recent years only has the question of the eco- 
nomical transmission of electric energy been solved. The solution of this problem 
has brought into the market water powers all over the world and there is no tlevelop- 
nient that is more active in all of the countries of the world than that of water powers 
for the generation of electricity. The total value of the water power at Niagara Falls, 
if all used, would be enormous and would equal the wealth of nations. The power 
which may be abstracted without seriously impairing the Falls, at a proper capitaliza- 
tion, would greatly exceed in value the entire value of the agricultural products of 
the State of New York. 

Just now there is a public sentiment upon this side to preserve the Falls even at 
the expense of ruining the power companies. Upon the other side of the river the 
sentiment is contrary. The effect of the measure before this committee would be to 
drive industries, the manufactured products of which would amount to hundreds of 
thousands of millions a year from the United States to Canada, and we respectfully 
submit that any such measure should receive the most careful consideration from, 
both branches of Congress. 

We do not wish to destroy the sentimental or beautiful about Niagara Falls, but 
we do wish to preserve our property and j^roperty rights and to develop them in 
such a manner that the world at large may enjoy the benefits of both. 

J. H. Hanson, Counsel. 



32 PRESERVATION OP NIAGARA FALLS. 

STATEMENT OF MH. H. I. COOPER, ENGINEER, NIAGARA COUNTY 
IRRIGATION AND WATER SUPPLY COMPANY. 

Mr. Cooper. Mr. Chairman and gentlemen, my part in this business 
is to speak of the engineering side, pure and simple, and 1 do so from 
three or four 3'ears' experience at Niagara Falls and some twenty years 
elsewhere from the purely professional constructive side. In view of 
that experience this legal side does not appeal to me ver}' nuich. How- 
ever, speaking on the question of sides it seems to me that all of the 
talk that has been given this question up to this time has been very one- 
sided, and I am reminded of a story that comes from Greek mytholog}^ 
where they had a river that was so narrow that it onl}" had one side; and 
possibly in view of the fact that this river has four sides, y^ractically, 
we have a right at least to discuss two sides of this proposition. 

As far as the engineering question goes, speaking personally, and 
speaking, I think, for the engineers of America as a whole, 1 believe, 
and we all believe, the beauty of Niagara Falls should not be impaired. 
I would not lend my time to a destruction of Niagara Falls for a great 
many reasons. The first one is, that 1 don't have to. The second one 
is that I do not believe that anything of that kind should be allowed. 

I am verj^ sure that a good many people who have discussed this 
question are honest in their belief that you can not take water out of 
Niagara Falls without destroying the beauty of them, and I will say 
that theoretically you can not do that, but practically you can. 

Upon the question of the sentimental side I undertake to say that it 
all lies upon the question of how it seems to the looker on ; that is the 
whole question as I understand it from that side. 1 have been at 
Niagara Falls for four years building a plant on the Canadian side — 
and by the w^ay the}^ expect to sell half of their power in vimerican 
markets, and to compete with 'American companies on the American 
side. I speak from experience as an engineer connected with that 
plant. 

I know that this problem of the amount of w^ater that is going over 
the falls — the thing we look at — can not be told l)y the eye within limits 
very wide in their extremes as regards the quantity of water that the 
falls are discharging. For instance, if the wind is blowing from the 
northeast it will blow the water back up into the lake, and it will make 
3 feet difference at Horseshoe Falls as to the amount of water that is 
going over the falls. It is a fact that I have never ])een able to tell 
w hat the gauge was at Niagara Falls by the looks of the f;dls, and I 
will rest our contention of this whole matter upon the ability of any 
sane engineer or any sane committee of men to tell how much water is 
going over the falls, or whether the gauge is up or down by the looks 
of the falls. I think in that regard more particularly it is so with 
reference to the Horseshoe Falls, where there is a great amount of 
water. 

The next point with reference to Horseshoe Falls, without dismissing 
it, is that the proposal of this company that is before you to-day is to be 
allowed to take as much water out of the river as is represented hj 
the diii'erence between the amount that the Canadians now have and 
the amount that the Deep Waterway Commission recommends that we 
shall have on the American side, which amount is 17,900 cubic feet per 
second. In other words, we propose to take that 17,900 cubic feet out 
from Cayuga Island, 7 or 8 miles above the falls. The taking of the 



PRESERVATION OF NIAGARA FALLS. 33 

water out at that point to the extent of 17,000 cubic feet per second 
fio-urew out that about onl}^ 13 per cent of it comes from the American 
side, and 8-7 per cent of it comes from the other side, as near as anyone 
knows — and in this talk I want to be understood that the statements I 
make are general statements; they are not last fractions, but general 
statements, as near as we can get at them. 

The taking out of 17,900 cubic feet per second at Cayuga Island, as 
near as we know (and 1 base this upon the best formula we have in 
hydraulics to-day — a formula we will stand on befoi'e any committee of 
engineers that may investigate the subject), will lower the depth of 
water over the Horseshoe Falls about 6 inches. And I sa}" at the 
same time, while that 6 inches is talked of, you can not tell a ditfer- 
ence of 3 feet there. On the other hand, this same formula applied 
to the American side will lower the water about 3 inches clear across 
the thousand feet of the American Falls. 

Our proposal, I think, is important because, among other things, it 
is the idea that it will put more water over the American Falls than 
ever went there before, and, as I understand the Treaty of Ghent, we 
are entitled to half the water, and that the boundary line is not a fixed 
quantity. We propose to put instead of 27,000 second-feet of water 
that comes there now 1:0.000 second-feet of water, and we propose to 
do that without the introduction into the bed of the river of any arti- 
ficial works of any kind whatsoever. I undertake to say that our 
friends who are so anxious al)out the scenic beauty of this business 
would be otfended if we had to get the water into the American chan- 
nel by the use of dams or things of that sort. We propose to do it 
by the lowering of the water about 3 feet above the entrance at Goat 
Island, something that will never be seen, and it will make the Amer- 
ican Falls handsomer than ever before, 

Mr. Alexander. You said that now there were about 27,000 cubic 
second-feet going over the American Falls? 

Mr. Cooper. Yes, sir. 

Mr. Alexander. And you propose to make about 40,000 cubic feet 
per second go over the American Falls^ 

Mr. Cooper. Yes. After what we take out what we propose to take 
out and after everybod}^ else has taken out what they have the right 
to take out. And that, mind you, to be done without any expense to 
the Government or without interfering in an}^ way with any vested 
rights on either side of the river. That statement is a fact practical 
in all of its bearings, and it is not anything that is brought in here 
before this committee with the idea that it is just to be stated now and 
not further discussed. 

Mr. Ransdell. How are you going to do it? 

Mr. Cooper. By building an artiiicial cofferdam out there in the 
river and then taking it out. 

The Chairman. For how long a distance would you hare to take it 
out and for what width ? 

Mr. Cooper. As near as I can get at the data, we would have to 
take out about 500 feet of the length of the river, up and down the 
stream, and about 700 feet wide across the river at Goat Island? 

Mr. Davidson. Why do you do that? 

Mr. Cooper. That is to yield to the public demand that the scenic 
beauty of the Falls shall not be destroyed. 



34 PRESERVATION OF NIAGARA FALLS. 

Mr. Davidson. Then, omittino- to do that, you concede that the 
diverting of the water would destroy the scenic beaut\^ of the Falls;' 

Mr. Cooper. I admit it to this extent, that theoreticaHy it would 
reduce the level of the water 3 inches; but in order that we miyht 
have the thing handsomer than before we will go to this further 
expense, and increase the amount of water 

Mr. Davidson. How much will it cost j^ou? 

Mr. Cooper. I think it will cost about $100,0(10. 

Mr. Davidson. And you are willing- to donate ^U00,000 in order that 
the scenic beauty may be increased? 

Mr. Cooper. We do that because we concedi^ that this comniittoe 
is rightfully impressed that there should be no possibility of the 
destruction of the beautj^ of Niagara Falls. 

The Chairman. What is the depth of the Horseshoe Falls and what 
is the depth on the American side, respectively^ 

Mr. Cooper. The average depth on the Horseshoe side is assumed 
to be somewhere in the neighborhood of 8^ feet. 

The Chairman. And on the American side? 

Mr. Cooper. On the American side 3 feet 9 inches to 4 feet. 

Mr. Alexander. What is the depth of water at the point where it 
goes over the precipice? 

Mr. Cooper. That is what I am talking about now. 

Mr. Alexander. That is, 3 feet on the American side? 

Mr. Cooper. Three feet and a half to 4^ feet on the American side; 
and from 8 feet to 9 or ]0 feet, according as the wind blows, on the 
Horseshoe side. 

Mr. Alexander. You say that all the water that is taken out now 
and proposed to be taken out by the works when they are completed 
will not reduce that water, which is 3 feet in depth, more tlian 3 inches? 

Mr. Cooper. More than 3 inches; that is a fact capable of absolute 
demonstration. 

Mr. Jones. Then how much water do you think could be diverted 
from the Niagara River without interfering with the scenic beaut}^ of 
Niagara Falls? 

Mr. Cooper. Without the doing of any further work, you mean ? 

Mr. Jones. Yes; under the present conditions? 

Mr. Cooper. Well, I should say that under ordinary conditions an 
engineer would not be able to discover that business unless 40 or 50 
per cent was taken out. That seems to you, gentlemen, like an 
unreasonable statement, as it does to everbody at first, but it is a fact 
all the same. I would like to say in this connection, about the 
measurement of water, that our suggestion is we ma}' be allowed to 
take out about 8 per cent of the water of the Niagara River. The 
reports and examinations by expert engineers in the United States 
Engineering Department, where the same engineer will go out and 
measure the same stream the same day, twice in the same afternoon, 
show that the same man will get a bigger variation in his quantities 
than 8 per cent right along. And in this connection 1 would say that 
I have been at this busiiu^ss for twenty years. It is not a question 
that ever deals with these little percentages. 

There is one other point 

The Chairman. Before you leave the point you are on. You state 
that from 40 to 50 per cent could be diverted from the flow over the 
falls without diminishing the scenic beauty of the Falls? 



PEESERVATION OF NIAGARA FALLS. 35 

Mr. Cooper. Yes, sir. 

The Chairman. Wo would like to hear from you in support of that 
idea. 

Mr. Cooper. I simply say this: That with all the water running 
there now, a difference of 3 feet on the crest of the falls, which 
amounts to over 30 per cent, is not determinable by the human eye. 

Mr. Davidson. That is on the Horseshoe side? 

Mr. Cooper. Yes, sir. 

Mr. Davidson. But with a depth of only 3 or 4 feet on the Ameri- 
can, what would you say? 

Mr. Cooper. It decreases in the same proportion; I don't think a 
man can tell it. 

The Chair^ian. What portion of the depth would be taken off by 
40 or 50 per cent of the water being diverted? 

Mr. Cooper. It would not decrease by the same percentage. It 
would be about 30 per cent, I think, of the depth with 40 per cent of 
the water. 

The Chairman, That is, it would be cut off from 3 feet to 2 feet? 

Mr, Cooper. From 4^ feet to 3i feet, or something like that, 

Mr, Lawrence. How much water flows over on the American side? 

Mr, Cooper. Normally about 27,000 cubic feet per second. 

Mr. Davidson. How much at its lowest stage? 

Mr. Cooper. You will have to modify that question, because it has 
been diy on the American side. In 1856 it was dry there. Is that 
what 3' ou mean ? 

Mr, Davidson, Well that is the extreme, but there are times when 
the Lakes are lower than other times, in a generally dry season. That 
is what I would like to know, 

Mr. Cooper. Y^ou mean how much lower than that it gets? 

Mr, Davidson. Yes. 

Mr. Cooper. I would not want to say definitel}^, but I should sa}" it 
might get down to 20,000 second-feet. 

Mr. Davidson, That would be how many feet or inches on the 
crest of the American Fall ? 

Mr. Cooper, I think somewhere in the neighborhood of 3 feet 3 
inches. I can not state that definitely. 

The Chairman. There are statements in published books that give 
the depth over the Falls as much greater than you have given it. I 
am informed that Mr, Porter in his Handbook of Niagara Falls said 
that a boat 20 feet went over the Horseshoe, 

Mr, Cooper, Yes, and a boat drawing 50 feet would go over the 
Horseshoe, 

The Chairman. He gave the impression that there was that much 
water there, at least 20 feet. 

Mr. Cooper. I don't think he knows what he is talking about. 

The Chairman. It is not known how much water there is in feet. 

Mr. Cooper. I do not think so, and I don't think anyone will ever 
know. 

The Chairman, Is there any way of measuring it? 

Mr, Cooper, No, sir. It might sound like an unfortunate admis- 
sion, but the only the way we can measure the water as to its depth 
over that crest is by the color, and in locating a tunnel that cost us 
$1,000,000 I located the end of it by the color of the water. It looked 



36 PRESEEVATION OF NIAGARA FALLS. 

a darker sfreen. That is the extent of our technical knowledofe on 
that question. 

Mr. Alexander. May 1 call 5'^our attention to the report of the 
International Waterways Commission. I read from page 9, sec- 
tion 26: 

The total qtiantity of water to be taken from the river V)y works now authorized is 
60,900 cubir feet jier second. Of this amount, 26,700 cubic feet has to bo taken on the 
American side. Tlie quantity that now passses over the American Falls is about 
27,800 cubic feet. 

Now they say — 

That this will, in general, have an injurious effect upon the Falls seems self-evident. 

In other words, according to this report, you propose to take 26,700 
cubic feet of water that now passes over the American side, and it 
seems there are only 27,800 cubic feet that pass altogether. 

The Chairman. No. He said ST per cent of that which the}^ would 
divert would come from the Canadian side and only 13 per cent from 
the American side. 

Mr. Alexander. This report says: 

Of this amount, 26,700 cubic feet are to be taken on the American side. 

Now, you say that 27,800 cubic feet a second is all there is that goes 
over on the American side. 

Mr. Cooper. Yes; but you understand only 13 per cent of the take- 
outcomes from the American side, which would be in the neighborhood 
of 2,700 instead of 27,000, and the other 87 per cent is the subtraction 
by natural law of the flow of water from the Canadian side. Do I 
make myself plain ? 

Mr. Alexander. Yes; but I do not understand this report, 

Mr. Cooper. Your engineers will bear me out in this statement. 

The Chairman. The report is clear enough; it sa3^s of this amount 
27,600 feet is to be taken from the American side. 

Mr. Alexander. The report indicated that it was to take on the 
American side 26,700, and that there were only 27,800 feet going over 
on the American side, and then they said that this will in general have 
an injurious effect seems self-evident. I should think it would. 

Mr. Cooper. Yes; of course. 

Mr. Alexander. You explanation of that is that of this 27,600 feet 
to be taken on the American side, as a matter of fact, oul}^ about one- 
fifth of it goes over the American side. 

Mr. Cooper. A))out one-eighth of it. 

Mr. Alexander. About one-eighth comes from American waters. 

Mr. Cooper. Yes, sir. 

Mr. Alexander. That is on the American side? 

Mr, Cooper. Yes. 

The Chairman. One minute. In order that you may understand 
the report fully, it is stated in that paragraph at the end that if all that 
taken on the American side should atfect the American fall alone it 
would probably leave it dry, but it seems probable that only a part 
of this diversion would be at the expense of the American fall. 

Mr. Cooper. You see they are not deiinite in that. We have gone 
into it with great care, and we have determined those proportions in 
such a way that we l)elieve your engineers will accept our conclusion. 

I want to conclude by saying that there is no statement we have 



PEESERVATION OF NIAGARA FALLS. 37 

made but what we are anxious to go on before your engineers who are 
advising' j'ou oti the matter. 

Mr. BiSHOi'. What is the depth you propose to sink to the bottom 
of the river '^ 

Mr. Cooper. About 3i feet. That would depend upon actual 
surveys. 

I wonder if everj^body understands what that moans. Let me make 
a little sketch. I wonder if you can see this. That black line repre- 
sents in a general way the slope of the Niagara River [exhibiting a 
pencil drawing to the committee]. The channel that supplies the 
American side is here. This top line represents more or less the depth 
of water over the slope. As we reduce the quantity of water the sur- 
face goes down. Now, 1 say we can go up to the top here and take off 
a wedge-shaped piece about -i feet deep and about 700 feet long, based 
on data supplied by the United States Government engineers, and we 
can put 40,000 cubic second feet of water down there instead of what 
has been going there, and we will do that without the introduction of 
anything offensive in the water. It is simple and practicable. 

The Chairman. What do you say about the right of this Govern- 
ment or any agency of this Government doing that without the con- 
sent of those on the other side of the river '^ • 

Mr. Cooper. I have had a good deal of talk with lawyers on the 
other side, and we have thrashed this out in Canada for three years, 
and the consensus of opinion over there is that as long as we do not 
do anything to take away from the Canadians their half of the water 
(which they propose tcT use, you will lind, if you take pains to inves- 
tigate) they have not anj^thing to say. I have thought that at this 
particular time — when there is so much excitement in Canada upon 
the question of municipal ownership and great developments, and our 
friend Lord Kelvin is quoted every tifteen minutes — that it would be 
a pretty good time for the United States Government to negotiate 
some sort of a treaty about this, and this question here could come up 
and be settled, if there is any legal side to it; I don't know whether 
there is or not. Our lawyers have said that there is not any. 

Mr. Lawrence. You are familiar with the second section of this bill, 
which saj'S that the Secretary of War is hereby authorized to grant 
revocable permits for the diversion of water from said Niagara River 
for the creation of power, but only to individuals, companies, or cor- 
porations which are now actually producing power from said water, 
and to them only to the amount now actually in use by such individuals, 
companies, or corporations. Your contention is that that is too 
stringent? 

Mr. Cooper. Absolutely. It is said in this bill somewhere, I 
believe, that the proposal is to limit the amount of power that shall 
come in from Canada to the amount now coming in, and one of the 
(;hief engineers told me the other day that they were going to build a 
huge rheostat, and that they would soon be putting all they wanted 
over. 

Mr. Lawrence. If we were going to pass a statute to limit the 
amount that could be diverted, you think that 40 per cent would not 
destroy the scenic beauty of the Falls? > 

Mr. Cooper. Yes; and if you will appoint a subcommittee to take 
testimony at Niagara Falls that commtittee will be able to see the 



38 PRESERVATION OF NIAGARA FALLS. 

truth of ever}' thing- 1 have stated in that connection. You can not see 
it very well here, but a committee that would go on there and would 
take testimony could see it. 

Mr. Davidson. You said that the Canadians proposed to use their 
half of the water? 

Mr. Cooper. Yes; they are proposing to vise it 

Ml". Davidson. When they do that what becomes of your proposi- 
tion to reach out and get from them current to add what is going over 
the American Falls? 

Mr. Cooper. We can keep going up farther with this project that 
I have described until we do take care of it. 

Mr. Davidson. Your contention against theirs would ultimately 
permit all of us to walk across the crest of the Falls. 

Mr. Cooper. No; my contention would be that it would continually 
preserve — if the Canadians took half of the water and we took 40 per 
cent of the balance, then you would have something that would not 
allow the maintenance of the beauty of the Falls. I am not going to 
be unreasonable in these statements 

The Chairman. You said if a subcommittee were to be appointed 
and they should go there in the summer — although we hope that some- 
thing will be donobwith this before then — that 3^ou could prove to them 
that taking 40 or 50 per cent did not diminish the scenic beauty of the 
Falls. Could 3'ou not now, by a statement of a few facts, show this 
committee how that amount can be taken without diminishing the 
scenic beauty? 

Mr. Cooper. The first fact is that the takifig out of this water — 1 
haven't the figures on the basis of 40 per cent, but I have them on the 
basis of what is before you. That is, that granting all that you have 
allotted and our request to be limited to that amount of water, that 
the reduction in the depth of water over the Horseshoe Falls would 
be 6 inches and on the American side 3 inches. 

Mr. Lawrence. How do you arrive at that conclusion; could you 
explain it so the layman could arrive at that conclusion, that such a 
diverting of water would only reduce the depth 3 inches on the Ameri- 
can side and 6 inches on the Canadian side — how do you reach that 
conclusion? 
r Mr. Cooper. I think I can tell you. 

Mr. Lawrence. 1 would like to hear that. 

Mr. Cooper. You know that the most reliable way of measuring 
water is by measuring it according to the depth of the water that flows 
on top of a dam, do you not? You have heard of the weir formula 
originated by Francis? It has been modified, but it is still the Francis 
formula that is confidently and reliably in use. We know the quantity 
of water generally that flows down the Niagara River as a whole. We 
know that the proportions are about 13 per cent and 87 per cent of 
division of the water. The next thing is that the length of the crest 
on the American side is approximately 1,000 feet. Now, speaking 
about the American side, if we know what the quantity of water is, 13 
per cent, or 27,800 feet, distributed ov^er a crest on a general level, 
which is a fact at Niagara Falls, 1,000 feet long, the water, by the 
application of the formula, will have to be 4 feet in order to get by 
that crest. Now, if that is not plain I do not want to go an}' further 

The Chairman. That is, when you have the velocity. 

Mr. Cooper. Well, I have omitted the que.>ition of velocity from 



PKESEEVATION OF NIAGAEA FALLS. 39 

this case, although that would make the argument stronger from my 
point of view. In the problem of the water coming along here and 
falling over, as a dam, we have a dam a thousand feet and we have 
27,800 cubic feet flowing over, that much going over the crest of that 
dam, the water has to be 4 feet deep, or in that neighborhood. The 
same method of analysis applies to the Horseshoe Falls. Now, then, 
in order to tind out how we get the 3 inches and the 6 inches, 3^ou 
would take out these quantities and apply the same formula and you 
would get those Hgures, 3 inches and 6 inches, and those are the reliable 
formulae that are in use to-day, and they are not disputed anywhere. 

Mr. Lawrence. So that if the depth is lowered 6 inches you do 
not arrive at that from the color of the water. 

Mr. Cooper. No; we judge which is the deepest part by the color. 

One other thing upon the question of navigation, which, as a lay- 
man, I think is a very important one. And I do not take any stock in 
some of the arguments that have f)een made about navigation. I think 
it is a very imj^ortant thing, and I think navigation is just as impor- 
tant to the power business as the power business is to navigation. I 
think the}^ go together. It is a fact that the subtraction of the 27,800 
feet which we petition for at Caj^uga Island is not a measural)le quan- 
tity and will not affect navigation in any sense, and the Government 
advisers, its engineers, will tell you the same thing, I am very sure. • 

In conclusion — I seem to have a good many conclusions, but there is 
only one other I think — we have set forth these facts generally in this 
document [exhibiting document], and it seems to me that when you 
consider that the granting of this petition, which provides for the 
creation of 450,000 horsepower, can be done without an}^ interference 
to the navigation, can be done reliably and knowingly beforehand, 
that it would not interfere with the beauty of Niagara Falls, that 
those things can be secured and known beforehand, that the same 
time it does those things that it will save to the coal supply of America 
3,000,000 tons a year, it is not possible, it seems to me, that an}^ com- 
mittee will overlook the actual facts before you to-daj^ , facts that can 
be proven be^'ond all question; there is not a single weakling in any 
statement we make. 

Mr. Ellis. Have you figured out that coal saving in your statement 
here ? 

Mr. Cooper. Yes, sir. 

Mr. Ransdbll. What limits do the Canadians propose to put upon 
the water they take? 

Mr. Cooper. They say without limit. 

Mr. Ransdell. Then, if we put a limit, you say they are going to 
go on? 

Mr. Cooper. I say now is the time with the government in the 
saddle over there on the power business and a great deal of anticor- 
poration talk and that sort of thing, it is a time when I believe a 
reasonable treaty could be made and make a good clean sheet of the 
thing; but unless it is approached in some such way as that — I happen 
to know a good many of the members in charge of this business in 
Canada from association with them for some years, and I believe some- 
thing positive could be done in that direction. 

Mr. Burgess. Your idea is, then, that we ought to have a treaty 
first and legislation afterwards rather than legislation first and a treaty 
afterwards 2 



40 PRESERVATION OP NIAGARA PAL,LS. 

Mr. CoorER. Yes, 1 think there is a big element over there that 
will just laugh in their sleeve. The}' haven't got over the Alaskan 
boundary decision yet. 

The Chairman. You were interrupted when you wei"e explaining 
how this 40 or 50 per cent could be withdrawn without destroying the 
scenic beauty. Is there anj^thing more you desire to say on that 
subject? 

Mr. Co0PER. I mean to say this: That the people who want the 
scenic beauty — most of them a very estimable portion of our popula- 
tion — don't know anything about the quantity of water, and 1 say that 
as to the quantity of water, whether it is 40 per cent or 30 per cent, 
it can not be told by an engineer b}' the looks of it; and if that is so, 
what is our school man going to be able to tell about it? I am 
reminded of a German who went there and looked at the American 
Falls, and then went and looked at the Horseshoe Falls, and his only 
remark in looking at the Horseshoe Falls was, "What a wonderful 
place to sponge pants!" I say we can prove all those things 

The Chairman. That is a very excellent bit of pleasantr}', but that 
does not answer the question, which is a scientific one and to which we 
would like to receive a scientific answer 

Mr. Cooper. All right, sir; I beg your pardon if I did not under- 
stand the question. 

The Chairman. How can you withdraw 40 or 50 per cent of the 
water and not destroy the scenic beauty of the Falls? 

Mr. Cooper. The length of the crest would be practically the same 
in each case, and you can not tell anything about the depth of the crest 
inside of those limits by looking at the water flowing over it. Tliat is 
the specific answer to your question. 

The Chairman. That is, the width of the Falls would be the same? 

Mr. Cooper. Practically the same. 

The Chairman. That is, you eliminate the idea of the volume of 
the flow having anything to do with the scenic beauty or grandeur of 
the Falls? 

Mr. Cooper, Yes, sir; I think within those limits the volume is not 
susceptible to the ej'e or ear. 

Mr. Burgess. You think, in other words, that if the water is 3 leet 
deep, it would look as pretty and sound as well as if it w^ere 6 feet 
deep ? 

Mr. Cooper. I do not think it would be discernible whether it was 
3 feet deep or 4 feet deep. 

Mr. Beue. What would be the eft'ect on the Canadian development 
if we prohibited importation of power; have they demand enough in 
Canada to take that power? 

Mr. Cooper. No, sir? 

Mr. JirRG?:ss. Our folks would go over there to utilize the power? 

Mr. Cooi'ER. Yes, sir; that is what they woiUd do, and that is what 
they are doing already. You drive your American industries out of 
America. 

There is one statement in here that you ought to read, and that is 
this: That this little 3 inches of power, leased on the United States 
census, will provide the groundwork of an annual maiuifacturing 
product of !5'v')4O,OO0,000, which is two and one-half times the total value 
of the farm product of the State of New York. All we ask to get that 
is 3 inches over the crest of those falls. 



PRESERVATION OF NIAGARA FALLS. 41 

Mr. Spaekman. What engineering- method would wo adopt to pre- 
f^ent the exhaustion of water on this side if the Canadians would take 
all the water they are entitled to take? 

Mr. Cooper. What engineering method would we adopt to main- 
tain our American Falls? 

Mr. Sparkman, Yes. 

Mr. Cooper. There would only be one method and that is to keep 
on sinking the upper end of this slope, and if we had to go to great 
depth, of course the expense would be very great. 

Mr. Sparkman. 1 understand you to say that they proposed to take 
it all. _ - 

Mr. Cooper. That is the proposal of certain people in Canada. 

Mr. Ellis. How far could you go before you reduced the level of 
Lake Erie? 

Mr. Cooper. Lake Erie is 22 miles back, and I do not think it 
would be possible to affect the level of Lake Erie, because of the slope 
of the river from that lake to the falls? 

Mr. Davidson. I wanted to ask you, in connection with the chair- 
man's question as to 40 per cent being taken, how you arrive at that 
40 per cent? 

Mr. Cooper. "Well, that is a mere theoretical calculation based upon 
our observations, with the action of the wind, and living on the banks 
of the river and seeing it day after day. 

Mr. Davidson. I was not here at the beginning of the meeting', but 
has there been anything given to show how much it is proposed now 
to actually take away ? 

Mr. Cooper. Yes; it is all given; we only ask to have as much as 
the Canadians have already got for power purposes. 

The Chairman, The exact amount you ask is what? 

Mr. Cooper. Seventeen thousand nine hundred cubic feet per second. 

Mr. Alexander. What is your company? 

Mr. Cooper. The Niagara County Irrigation and Water Supply 
Company. 

JSlr. Davidson. I suppose all other power companies interested 
would want their share? 

Mr. Cooper. Well, 1 think they all got their share. 

Mr. Davidson. This company interested here to-daj' is only one of 
several ? 

Mr. Cooper. That is correct. 

Mr. Davidson. So our determination of this can not be based upon 
your argument as to the eti'ect of 3 or 6 inches which this particu- 
lar company would have upon the scenic beauty, but we must con- 
sider the eti'ect on the scenic beauty of the amount that would be taken 
1)}^ all the companies. 

jNIr. Cooper. But all the other companies on the American side are 
getting their wat(>r out now. 

Mr. Davidson. Yours is the only company that is not doing so? 

Mr. Cooper. Yes, sir. 

The Chairman. Your argument is based on the idea that these other 
companies — the Niagara Fails Power Company and the Niagara Hydrau- 
lic Power and Manufacturing Company — shall not take any more water 
than they are now taking from the river? 

Mr. Cooper. No; that is not quite true, I believe. It is true with 
reference to the Niagara Fails Power Company, I imagine, but I do 



42 PEESERVATION OF NIAGARA FALLS. 

not think it is true with reference to Mr. Shelcroft's plant — the other 
plant. 

The Chairman. How much more would you say could be withdrawn 
by those companies? You say you are not counting on an}^ more being- 
withdrawn by the Niagara Falls Power Company? 

Mr. Cooper. Yes; and if you will excuse me, the total amount of 
8,000 — or whatever it is, being taken out by Mr. Shelcroft's company — 
not now being taken, but proposed to be taken 

The Chairman. Nine thousand five hundred is the report of the 
Commission. 

Mr. Cooper. Well, T base it on the report of the Commission. 

The Chairman. Are you counting on any more being taken out by 
that company? 

Mr. Cooper. Yes, the full 9,500 mentioned in the report. 

The Chairman. But you are counting on a limit of the withdrawal 
of power by the Niagara Hydraulic Power and Manufacturing Com- 
pany to 9,500 cubic feet, and to the other company of 8,600 feet. 

Mr. Cooper. Yes. 

The Chairman. And so it will not injure the Falls? 

Mr. Cooper. Yes. 

The Chairman. You are using that as your basis? 

Mr. Cooper. Yes, sir. 

Mr. Alexander. Are you using that, the Niagara Falls Power Com- 
pany, 8,600 feet, or are you using it as shown by the International 
Waterways Conunission at 17,200 feet, which they have contracted for? 

Mr. Cooper. I am taking the recommendations of the Deep Water- 
ways Commission on page 12 of that report. 

The Chairman. So according to your idea your IV, 900 would be 
added to those estimates given on page 12? 

Mr. Cooper. Yes, sir. 

The Chairman. And that would be the end of permits on the 
American side? 

Mr. Cooper. Yes, sir. And I think you could make a contract with 
Canada to stop them over there. 

Mr. Davidson. On page 12 the Niagara Falls Power Company is 
restricted to 8,600 feet, while they are authorized to take 17,200. 

Mr. Cooper. Yes. 

Mr. Davidson. What are you authorized to say about that? 

Mr. Cooper. I am advised by our lawyers that there is no limit, but 
I believe there should be a limit. 

Mr. Davidson. What do you want? 

Mr. Cooper. Seventeen thousand nine hundred, as much as the 
ditference as set out on page 12, and what the Canadians have already 
had. 

Mr. Davidson. Then you want practically as much as both com- 
panies on the American side put together. 

Mr.*CooPER. Yes, sir; and for the great reason that we can make 
practically twice as much use of the water for each cubic foot as thej^ 
can. 

The CnAii{MAN. That is, vou have a much greater area? 

Mr. Cooper. Wc have practically 300 feet, and theirs will average 
probably about 150, and if there are to be any diversions at all it seems 
to me where you can make the greatest use of each cubic foot is the 
place you should look for it to be diverted. 



PEESEEVATION OF NIAGARA FALLS. 43 

Mv. Davidson. If the amount authorized for the Niagara Falls 
Power Company is to be cut down one-half, then what do you say to 
lowering the figures to your company; what ground would you meet 
with tht'ui upon^ 

JMr. Cooper. I would meet with them on two grounds. In the first 
place, that we make a better use of the water, and therefore, 3'ou do 
the general public more good, we do the conmierce more good — twice 
as much by the use of w^ater; and the next proposition is this: That 
if the commerce of the United States is ever to achieve the place 
that we suppose it is going to, some day there will be a deep waterway 
between those two lakes, and we propose in this article we give you 
to construct half of that and give it to this Government for nothing, 
amounting to over $2, 000,000. 

Mr. Davidson. And your canal could be used for navigation pur- 
poses ? 

Mr. Cooper. Yes. 

Mr. Davidson. And you would consent to that without cost? 

Mr. Cooper. Without cost to this Government; yes. And when 
these things are estimated and put all in the balance of general public 
utility and compared with that 3 inches, I do not believe this com- 
mittee will ov^erlook what we ask for. 

The Chairman. Of course, Mr. Cooper, that is a very attractive 
proposition for this committee, which is occupied primarily with navi- 
gation, but we have to meet the situation as it now is. Those other 
companies have their works completed; they are furnishing power, 
and a considerable development of industry has grown up in depend- 
ence upon that power. 

Mr. Cooper. Yes. 

The Chairman. Now, you have not commenced at all, except this 
preliminary work? 

Mr. Cooper. Yes, sir. 

The Chairman. The purchase of some land and an expenditure of 
some $100,000. You must recognize that we have to take into account 
all those facts. 

Mr. Cooper. We do recognize that. 

The Chairman. One other point, returning to the matter of the 
diversion of this amount — 40 or 50 per cent, or whatever it may be — 
can anyone tell whether the flow will be limited to a portion of that 
crest rather than occupy the whole of it; can an3"one tell that now? 
Suppose you draw out a certain proportion of the water, do j^ou 
understand the shape of that crest and the flow of water over it well 
enough to make any forecast of what will be the result of withdrawing 
30 or 40 or 50 per cent of the flow of the Niagara River? 

Mr, Cooper. Yes; I think so. I have been for many years at this 
kind of business, and I am conscientious in what I tell you — that that 
is the sensible way of deciding this thing, and what I have told you 
is the truth. 

The Chairman. It is your deliberate thought that 40 per cent could 
be withdrawn and water would flow over the whole crest? 

Mr. Cooper. Yes. 

The Chairman. Would the company you represent accept a condi- 
tion that if the flow should be materially diminished, so as to injure 
Niagara P alls as a scenic spectacle, or in case the water should not go 
over the whole crest, their rights might lapse ? 



44 PEESERVATIOISr OF NIAGARA FALLS. 

Mr. Cooper. We would make it, I think. I would say, as the engi- 
neer of this company, that unless we can produce these results that I 
have said we can produce, we would, not have an}^ title to the property; 
that the water coiUd be taken away. 

The Chairman. That is, that the water must flow over the whole 
crest ? 

Mr. Cooper. Yes, sir. 

The Chairman. The Horseshoe Falls and the American side? 

Mr. Cooper. Yes. 

The Chairman. As to the volume, what would 3^ou say about that? 
Many seem to prize the volume as much as the width of the cataract? 

Mr. Cooper. Well, the only answer 1 could make to that is a simi- 
lar answer to one I made to President Cassatt of the Pennsylvania 
Railroad the other day in an argument upon the subject of another 
river. I think the volume will not sound cjuite as large, but the point 
is that all great improvements are attended by some sacrifice. The 
Morse telegraph took the place of man}^ dispatch lines; the railroad 
took the phice of many stage lines; and I think there may be a little 
diminution of sound if you got down to 40 per cent, but for practicable 
purposes you can not tell the difference. 

There is only one thing further in reference to these people having 
17, '200 feet of water. As a rough general statement, if you give them 
all that and gave us what we ask for it would probably make 4^ or 4^ 
difference, and I submit that' that difference is absolutely negligible 
when you come to see all these other benefits. That is the point. 

Mr. Davidson. Do you know the crest as to the Horseshoe Falls^ 
as to whether it is practically a straight line? 

Mr. Cooper. No; it is very irregular, and it is going upstream 
about 3 or 4 feet a year. 

Mr. Davidson. Deeper in the center? 

Mr. Cooper, Yes; it is converging in a V- shape. 

Mr. Sparkman. It is breaking off' in the center? 

Mr. Cooper. Yes. If we wanted to go to some further extreme we 
could say that a diminution of the water over Horseshoe Falls is a 
direction on the side of safety for a continuation of scenic beauty, 
because the more water that goes over the faster it washes awa3^ Did 
you know it was going over 4 feet a year? 

Mr. Davidson. 1 wanted to ask about the American Falls. 

Mr. Cooper. The American Falls doesn't have any of this subwater 
underneath that washes away the slate and the lower strata. One-half 
of this 160 feet is slate. The top half is limestone. The slate by the 
action of the water and the weather eats away and leaves a shelf over- 
hanging, and as that shelf gets too heavy it breaks off. We had the 
pleasure of seeing what that looked like in behind there. 

Mr. Davidson. I have seen what the American Falls looked like 
behind but not the other. 

Mr. Ransdell. Will all these works you propose to put in cause 
any greater outflow of water from Lake Erie? 

Mr. Cooper. Not at all; that is regulated by the flow into Lake 
Erie. 

Mr. Ransdell. Then why does this commission mix up the Chicago 
Drainage Canal with this proposition? 

Mr. Cooper. Because they take water out of Lake Michigan and 
reduce the amount of water by diverting it into the Mississippi Valley. 



PEESERVATION OF NIAGARA FALLS. 45 

The Chairman. That is, the Chicago Drainage Canal does lower the 
lev^el of the lakes? 

Mr, Cooper. It does; but I think it is inappreciable — these quanti- 
ties talked about. 

Mr. Kansdell. Then the only problem we want to consider as to 
the affecting of the general level of the lakes is the Chicago Di-ainage 
Canal? 

Mr. Cooper. Yes. 

Mr. Ransdell. That is the only one. I thought that was so, but I 
wanted to be confirmed in that opinion. 

Mr. (Cooper. That is correct. 

Mr. Burgess. And you think that is inappreciable? 

Mr. Cooper. I do not think that is a measurable quantity. The fact 
of the matter is that the level of the Lakes has been increasing for three 
or four 3^ears, and nobody knows why that is going on. The drainage 
does not suggest it to the extent that it is increasing. 

Mr. Bishop. Do you know the annual rainfall for the last few years? 

Mr. Cooper. That may have increased, but it is not in the same pro- 
portion. Another interesting thing in this connection is that the whole 
Chicago district is going down geologically and this region is rising, 
and in about three thousand years it will all go b}'^ the Mississippi 
Valley. 

STATEMENT OF MR. M. A. VIELE, ENGINEER, NIAGARA COUNTY 
IRRIGATION AND WATER SUPPLY COMPANY. 

Mr. ViELE. Mr. Chairman and gentlemen of the committee, while 
I am connected with this company which you have so kindly given a 
hearing this morning, 1 am interested in this problem along somewhat 
broader lines. I am in hopes that your committee will see fit to 
modify this bill so that you will not endanger the vested rights of this 
company or any of the companies which are operating or have the 
right to operate on the American side at Niagara Falls, or even on 
the other side as far as they relate to our own industries. 

Several of the companies on the American side have certain rights. 
They have had certain plans for their future development. They 
have set aside securities based on their entire development, and I think 
they should be given every consideration. This company has only 
been delayed in proceeding with this work, owing to the fact that we 
wished to have certain questions definitely determined by the courts of 
New York before going ahead. That determination has only been made 
within the last sixty days. We were about to proceed when the Presi- 
dent's message to Congress was sent in, and then the threatened action 
by your committee cast an obstacle in our path, and while we hope it 
would not ultimately prevent our going ahead with the enterprise, it 
tends to intimidate capitalists who would interest themselves in the 
enterprise. 

1 feel that the entire industrial development of the State of New 
York and that portion of our country depends upon the judicious 
legislation and the judicious regulation of the use of the waters of the 
Niagara River. We are in a position at Niagara Falls — and by "we" 
I speak in a broader sense than relating to this company — we are in a 
position there to allow these companies now operating to be developed 
to their legitimate limits; we are in a position to allow this enterprise 
p N F — OG 4 



46 PRESERVATION OF NIAGARA FALLS. 

to be developed to its legitimate limit without in any way affecting the 
Falls so that they will be despoiled or their beauty ruined. 

The only waj^ in which an individual looking at those Falls has any 
idea of them is to see the crest, hear the water that goes over. You 
can hear the sound, but 3'ou can not see volume; you can only see 
surface. 

Going back to our own enterprise, we feel that we are going to 
benefit the commerce of this country; we are going to increase the 
development of that entire portion of the country. This cvanal which 
we will build and have to build for our power purposes is suitable 
through one-half its length for navigation. Along the banks of that 
canal we hope to build up industries; we hope that canal will prac- 
tically be a harbor for vessels at the lowerendof the Niagara River where 
they could seek refuge. They w^ould be absolutely safe there, as they 
would not be out in the river proper. The current would only be 
about 2 feet a second, which is less than one-half the current of the 
Niagara River. 

If this development alone is carried out to the extent we hope, we will 
develop 450,000 horsepower. That means a revenue of $!:),000,000 a 
year, at $20 a horsepower. That would develop that entire section 
of the country; it would give manufactured products, as Mr. Cooper 
said, of $540,000,000 a year. We expect to transmit the power out 
through the West as far as Cleveland, going through all that section 
of country, and helping to develop it and build up their manufactures 
by giving them an opportunity to go into enterprises which to-day are 
not commercially profitable, which to-day are not at all attractive, 
because they can not get the cheap power which can develop thoni. 

There is one very interesting feature which you gentlemen cjhould 
bear in mind, and that is that at Niagara Falls to-day a large portion 
of the power is used for the purposes which were started and which 
were not proposed, which were not even known at the time the Niagara 
Falls Company started their development. I feel that it would be to 
the interests of everyone in the western part of our State if this bill 
could be amended so as not to injure the vested rights of all the com- 
panies which now have the right to operate on the American side or 
to transmit power into this country. I feel that the sentiment of a 
large part of the people in Niagara Falls and in Bufi'alo is against any 
such restrictions. I think that 3^ou gentlemen will find, now that this 
matter has gone so far, that the people are considering it seriously; 
that you will have as many petitions, and that your will have as many 
requests to prevent this hasty legislation as you have had in the past 
to pass it. 

Up to the present time the business men of the country, the men 
who are interested in the power development, have not felt that this 
thing was serious; they have thought that it was one of those ideas — 
sentiments — that overwhelm us once in a while and then pass on. 
Until your committee took this up we did not consider that this thing 
had gone so far. Now we realize, almost too late, that the great man- 
ufacturing and commercial supremacy of our State and our part of the 
country depends on our ability to utilize the resources which the Lord 
has placed at our disposal for the benefit of mankind. 

Mr. Davidson. What are the dimensions of 3'our canal where it 
runs out from the intake and the turn ? 

Mr. ViELE. The dimensions that would ordinarily limit the size of 



PRESERVATION OF NIAGARA FALLS. 47 

such a canal would be those which would give the best channel, the 
best flow of water for power purposes, but the amount of water which 
we liave to take is so hirge and the speed at which we wish to take it 
is so low that the section will be larger than it would be ordinarily; 
and it will probably be 200 feet wide and 25 to 30 feet deep. 

Mr. Davidson. Does your charter make any provision for payment 
to the State '^ 

Mr. ViELE. No; our charter gives us a right to the unlimitjed use of 
the water of Niagara River. We do not feel that that is reasonable; 
we are willing to bind ourselves not to divert over a certain amount 
of water, which shall be equitably determined. We do not feel that 
we should have the right to divert any more water from the Niagara 
River than the most favored company having rights at Niagara Falls. 

Mr. Davidson. Then, if the power company's right was restric^ted 
to 8,000, as recommended by the commission, would you be satisfied 
with a like restriction? 

Mr. ViELE. No, sir. I don't think ^^ou ought to restrict them to 
that. I think that they have every reason to feel that they should 
have more water than that. 

Mr. Davidson. Then you think they should have their full limit of 
17,000 feet? 

Mr. ViELE. I do not remember the exact limit, but I think that 
they and ourselves and other companies should have their vested rights 
protected. 1 do not feel that our vested rights should be fixed or that 
we should be deprived of them. I feel, however, that a reasonable 
limit should be placed on them. 

The Chairman. There are several gentlemen here who represent 
other interests, I understand, who desire to be heard. 

Mr. Ellis. On this same proposition? 

The Chairman. Well, with regard to the diversion of water there. 

(Thereupon, at 12.45 the comuiittee adjourned until to-morrow, Tues- 
day, April 17, 1006, at 10.30 o'clock a. m.) 



Committee^ on Rivers and Harbors, 

Tuesday, April 17, 1906, 

STATEMENT OF FRANK A. DUDLEY, ESQ., COUNSEL, NIAGARA 
FALLS ELECTRICAL TRANSMISSION COMPANY. 

Mr. Dudley. Mr. Chairman and gentlemen of the committee, I 
appear on behalf of the Niagara Falls Electrical Transmission Com- 
pany, which is the distributing company for electrical development, 
and it owns one of the power plants on the Canadian side of the river. 
I have also been requested to appear for several municipalities in 
western New York, namely, the villages of La Salle, Albion, and other 
localities. I wish to read in that connection a letter which I have just 
received from the office of the mayqr of Albion. 

Mayor's Office, 

Albion, April U, 1906. 
PToii. Frank A. Dudley, 

Niagara Falls, N. Y. 
Dear Sir: Understanding that you expect to be present in Washington on Mon- 
day next at the hearing to be held on that day on the bill introduced by Congress- 
man Burton relative to the production and use of electric power at Niagara Falls, we 



48 PRESERVATION OF NIAGARA PALLS. 

beg to present to you our views on the subject, in order that you may bring them to 
the attention of the committee on the hearing. 

We understand that the bill in question would in its present form prevent the 
importation of electric current into this country. from Canada, and while we are 
heartily in favor of preserving the Falls we do not see why Canada should have the 
benefit of electrical development already in operation or authorized. 

The company that furnishes light and power for this village, together with the 
villages of Middleport and Brockport, is controlled by the Electrical Development 
Company, of Ontario, or its allied company in the United States. This community 
has been counting on the time when power would be available from Niagara Falls. 
We understand also that both the Development Company and the Lockport and 
Ontario Company, which has a line just south of here, have expended considerable 
money for franchises and construction, and we believe that their vested rights and 
the promotion of industries in western New York demand that they be excepted 
from the provisions of any law curtailing the importation of electricity. Besides 
this, we are informed that the proposed trolley line from Buffalo to Rocliester (the 
tracks of which are now laid in this village) has some arrangement for obtaining its 
power from the Electrical Development Company, and we are convinced that any 
curtailing of the ability of this company to furnish power would deprive Albion and 
this whole section of the country of a trolley road, which has been sought after and 
hoped for by all the citizens between Buffalo and Rochester. 

We therefore earnestly hope that you will use your best endeavors to see that the 
interests of this community are protected in this matter, which we deem of the 
utmost importance. 

Perry W. Church, 
President of the Village of Albion. 
San ford T. Church, 
President of the Board of Education. 

The Chairman. Were these risrhts obtained through the Niagara, 
Lockport and Ontario Power Company ? 

Mr. Dudley. The^^ were obtained throug^h the Electrical Transmis- 
sion Company, which I represent. I have a map here showing the 
villao-es on the Niagara River which are supplied and which are to be 
supplied with power. 

i nc CiiAiRMAX. Is there any one here representing the Niagara, 
Lockport and Ontario Power Company? 

Mr. Dudley. General Greene does. His interests are similar to 
mine. 

The Chairman. Is it not true that the New York house of repre- 
sentatives unanimously passed a bill repealing the charter of that 
company ? 

Mr. Dudley. I do not know about that. I think not the charter of 
that; company. Th<3y repealed several charters, but not that one. 

I have been requested bj' the municipalit3^of La Salle to read thi.> 
letter: 

Hon. Theodore E. Burton, Chairman, 

AND the Members of the River and Harbor Committee, 

Iloiisr of licpresentatUes, Washington, D. C. 

Gentlemen: The municipality of La Salle, by its constituted authorities, does 
herel)y resiM'ctfully protest against the pas^sage of the House bill, "For the control 
and regulation of the waters of the Niagara River, for the preservation of Niagara 
Falls, and for other purposes," in the form in which it now is. 

The municipality of La Salle and its principal manufacturing interests are and will 
be dependent for electrical current on power generated at Niagara Falls, Ontario, on 
the Canailian side of the Niagara River. 

Large sums of money have been expended by American companies in the building 
of transmission lines and transforming stations, having for the jmrpose the distribu- 
tion of electrical power to munici]mlities, railroads, and manufat'turers in the State 
of New York, and manufacturing plants and trausjiortation comi)aiiics have and are 
now being constructed to be o[)erat('d by jiower generated by the three (^anadian 
power companies now having partially-comi)leted plants. Many millions of dollars 



PEESERVATION OF NIAGARA FALLS. 49 

have been invested in these enterprises, and the preventing of electrical power from 
the companies in question being sent to the United States would result in irreparable 
injury and destruction to the manufacturing and commercial interests of western 
New York. 

With a full knowledge of the volume and flow of the waters of the Niagara River, 
we respectfully state that the water which will l)e used in the development of power 
by the two American power companies and the three Canadian power companies 
will not in any appreciable way lessen the flow of water over the American or 
Canadian Falls or injuriously affect the scenery of or in the vicinity of the Falls; that 
on the faith and credit of grants made many years ago by the (constituted authorities, 
many millions of dollars have been spent in the development of the five power plants 
above referred to and the manufacturing and railroad interests, which have con- 
tributed largely to the prosperity and welfare of the State of New York. 
' We therefore respectfully ask that nothing will be done by your honorable body 
which will injure or destroy our vast manufacturing, transportation, and commercial 
interests, and that nothing will be done which will prevent the three Canadian 
power companies from bringing power to the United States, to the amount and under 
the restrictions of their respective charters. 

Village of La Salle, 
By M. O. Corley, Preddent. 

State of New York, County of Niagara, ss: 

I, J. H. Schmeck, clerk of the village of La Salle, Niagara County, N. Y., do 
hereby certify that the foregoing petition and request was duly adopted at a meeting 
of the board of trustees of La Salle, held on the 14th day of April, 1906. 

J. H. Schmeck, 
Clerk village of La Salle, N. Y. 

Subscribed and sworn to before me this 14th day of April, 1906. 

[seal.] Harry Highland. 

The Chairman. How much power do those three companies have, 
according- to the International Waterway's Commission? 

Mr. Dudley. Sixtv-two thousand five hundred horsepower. The 
Ontario Company have developed 50 per cent of their right, and that 
is true as to the Canadian Power Company also, 

Mr. HuMrHREY. What is the amount of your rights which have 
been developed? 

Mr. Dudley. One hundred and twenty-five thousand horsepower. 
As to the Canadian and Niagara Power Company Mr. Lofus carf speak. 

Mr. Lofus. Our plant at present is equipped for 110,000 horsepower, 
all importable. 

The Chairman. How many cubic feet? 

Mr. Dudley. It is stated in the report of the International Water- 
ways Commission. I think it is in the neighborhood of 9,500 feet per 
second. 

The Chairman. Do these villages which 3'ou represent desire that 
any restrictions be imposed upon the diversion of the waters of the 
Niagara River? 

Mr. DuDi^EY. That question has not yet come up. They do desire 
the preservation of the Falls. 

Mr. Chairman. Of course if it is a feasible plan that you suggest, 
any proof that the diversion of a certain amount of water will not 
injure the Falls as a scenic spectacle would be valuable for us to hear. 
If every corporation that wants power must have what it desires then 
it will take a great amount of the water of the Falls. 

Mr. Dudley. I think there is a limit which may be safely fixed as to 
the amount of water which may be used without any noticeable impair 
ment to the scenery 



50 PEESERVATION OF NIAGARA PALLS. 

Mr. Lawrence. I understood that you objected to importintv power 
from the Canadi<an side. Would 3'ou suggest a limit of the amount of 
power that can be imported from the Canadian side; and if so, to what 
extent? 

Mr. Dudley. The object is to restrict the further development of 
the power on the Canadian side. If made applicablo to the future use 
of power, so far as we are concerned we have no .objection. 

Mr. Lawrence. The point is as to who will develop it. 

Mr. Dudley. We have the rights to take care of 62,500 horsepower 
that is developed, and we are obliged to receive and sell it on the 
American side. I am president of the harbor commission of the city 
of Niagara Falls, which for many years has had charge of the Niagara 
Kiver in that cit}'^, and is invested with authority from the State of 
New York, and a great deal of the information which I will give 3^ou 
has been obtained b}' me in that capacity, and to that extent I repre- 
sent the city of Niagara Falls. I did not know until "Friday that this 
matter would come up, and knowing the limited time in which the 
matter was to be considered, I have made some notes, and with your 
permission 1 will refer to them. 

The report of the American members of the International Water- 
ways Commission says: 

There are now five principal corporations engaged in furnishing or preparing to 
furnish electricity for commercial purposes, obtained from water power, two of them 
located on the American and three on the Canadian side. 

These companies are, on the American side, the Niagara Falls 
Hydraulic Power Manufacturing Company and the Niagara Falls 
Power Company. On the Canadian side, the Canadian Niagara Power 
Company, the Electrical Development Company of Ontario, and the 
Ontario Power Company. 

I represent the Niagara Falls Electrical Transmission Company, 
which is the distributing company in the United States of the Elec- 
trical Development Company. The above-mentioned report says of 
the Electi'ical Development Company: 

On the 29th of January, 1903, the commissioners for the Queen Victoria Niagara 
Falls Park entered into an agreement with three citizens of Canada, subsequently 
transferred to "The Electrical Development Company of Ontario (Limited)," incor- 
porated by act of the legislature of Ontario. (5 Edward VII, chap: 12.)^ Under 
this agreement authority was given to take from the Niagara River water sufficient to 
develop 125,000 electrical horsepower. The amount is computed to be 11,200 cubic 
feet per second. 

The location of the works is shown upon the map. Water is taken from the river 
about midway between the intakes of the Canadian Niagara Power Company and of 
the Ontario Power Company, or about half a mile above the Falls. A gathering dam, 
about 750 feet long, extends out into the river obliquely upstream, designed to divert 
the re(}uired amount of water into the power house, which is located upon the origi- 
nal shore line. Under the power house is a wheel pit, excavated in the solid rock 
to a depth of 158 feet, at the bottom of which are placed the turbines. After passing 
through the turbines the water is conveyed by a tunnel to the base of the Falls and 
discharged about midway between the Canadian and American shores. The works 
are not completed and no water is now l)eiiig used. They represent an investment 
of several million dollars. 

In case of each of the Canadian companies the authorities reserve 
the right to require that one-half the power generated shall be sup- 
plied to places in Canada. 

The plant of the Electrical Development Company, unlike the con- 
struction of other power plants, is l)eing completed in its entirety and 
already is prac^'cally finished. Already many millions of dollars have 



PRESERVATION OF NIAGARA FALLS. 51 

been expended and by next fall it will have developed practically its 
entire output of electrical energy. While a description of this, 1 
believe the most modern of the live power plants referred to, would be 
interesting-, I will only state that in the formulating of the plans and 
the execution thereof every effort has been made to add to rather 
than detract from the beauty of the upper Niagara River. 

No part of the company's works will be visible except the power 
house, which in style of architecture on the outside will be Italian 
renaissance. It is on the bank of the river at somewhat higher ele- 
vation than the main park driveway, and to overcome the difference in 
elevation broad terraces enhanced with parapets and wide flights of 
steps will be constructed, adding materially to the esthetic appearance 
of th» landscape at this point. A wide colonnade supported by mas- 
sive stone columns graces the entire front of the structure, and from 
this colonnade visitors will be able to view through large plate-glass 
windows the complete operation of the massive machinery within the 
building. 

Much has been said concerning the effect of diversion of water for 
power purposes on the scenic qualities of the Falls. The Waterways 
Commission's report says: 

The total quantity of water to be taken from the river by works now authorized is: 

Cubic feet. 

Niagara Falls Hydraulic Power and Manufacturing Company 9, ^00 

Niagara Falls Power Company , 17, 200 

Canadian Niagara Power Company _ 9, 500 

Ontario Power Company, not including Welland River development 12, 000 

Electrical Develo]mient Company 11, 200 

Niagara Falls Park Railway Company 1, 500 

Total 60,900 

Of this amount 26,700 cubic feet is to be taken on the American side and the 
remainder, 34,200 cubic feet, on the Canadian side. 

It is within common knowledge that it is not practicable for the five 
companies above named to divert all the water to which by grants 
they may be entitled to take and that 50,000 cubic feet per second is 
the maximum which in all prolmbility the}', will ever take. 

The Waterways Commission will go no further than to say, " While 
the injur}^ may be perceptible it ma}^ not be destructive or disastrous." 

Water taken by the development company is again returned to 
Niagara River at the foot of Horseshoe Falls and commingles with 
other water falling and adds to the volume, a portion of the distance 
at least, during the descent. 

While it is perhaps ditiicult to justly weigh the relative importance 
of benefiting the material or the aesthetic side of mankind, the great 
mass of our people can not afford the time or money to obtain the 
" aesthetic education" for which the Falls seem principally useful in 
the opinion of the Waterways Commission. The power developed 
has enabled the State of New York, through its manufacturers, to pro- 
duce directly and electro-chemically many of the most important 
products for the progress, comfort, and well being of all our people. 
I might mention flour, food products, paper of all kinds, caustic soda, 
bleaching powder, numerous by products from chlorine, aluminum, 
graphite, carborundum (now used as a substitute for emery), phosphorus 
products, carbide for acetylene gas, sales slips, machinery of nearly 
all kinds, silverware and cutlery, and, in fact, almost all manufactured 



52 PRESERVATION OF NIAGARA FALLS. 

prodnots known, and by reason of now niotliods in nianufactnrc, made 
possiWlo bv oloi'trii- nowor, tlio ])ru'o to tho oonsuinor lias; boon and is 
bound to ho inatoiially lossonod. 

Many ])V(tducts horotol'oro prinoipally ol)tainod from foroinn 
oountiios aro now }M'odiuod in wostorn Mow York by tho uso of oloe- 
trio j)owor, N\)t only will wo obtain tho luMiolits of now and ohoapor 
products, but continuous omployiuont will l)o oivon to a ^roat nuniltor 
of our citizons. It soonis to mo it is oqually as bonotioial to mankind 
to permit of tliose things which will contribute tt) their material wel- 
fare and oivo them employment, food, clothino-, and hoiues, as it is to 
educate their iosthotic tastes. 

What is trut> of Niauara Falls is projHn'tionatoly true of every beau- 
tiful river and falls in tlu> United States. Van Hyke says he gets the 
most enjoyment out of little rivers. Others like best the turbulence 
of Niagara, the Columbia, and the Snake. It takes the beautiful 
rivers of the west and destroys their falls and cataracts to reclaim the 
vast American desert, and this is being done by Congress on the sug- 
gestit>n of our President. 

The (iroat Snake Kiver, with its mighty falls at Shoshone of over 
200 feet — one of the great spectacles of this country and the only falls 
that can be compared with Niagara in volume of water and exceeding 
it in length of descent — is, 1 believe, to be largely sacrificed in the 
groat Shoshone irrigation project — this for agricultural purposes. 

It takes tho waters from the beautiful rivers and fails of the State 
of AVashington to irrigate the groat Yakima \'allov, the agi-icultural 
part of that State, and to develop the power that is now assisting in 
producing those empire cities on that sapphire sea, Puget Sound. 

The taking of water by the Electrical Developmeut Company will 
not in any way impair the scenic beauty of the American Falls, nor 
will it in anyway diminish the flow of water over the American Falls 
for the reason the ]H)int of intake is below the crest of the rapids and 
tho point where (iioat Ishuul divides the American and Canadian falls. 
On this point the report of the AVatorways Conunission says: 

Tho water taken on the Canadian s^ide below the crest of the rapids will affeet the 
Horseshoe Falls alone. 

The point of intake of the Electrical Development Company is 23 
feet below the American Falls, and water goes through tho tunnel of 
this comi^any at a lesser velocity than it jiassos over tho Falls. It is 
ditlicult to determine with any degree of certainty the exact anu)untof 
water tlowing in the Niagara River at the crest of the Falls. The 
AVatorways Commission, basing their estimate on the army ropcu't for 
lUOO, estimate '*at the mean level of the lake (elevation 572. 8(5) the 
volume of discharge is 222,400 cubic feet per second." But on the 
authority of the United States Lake Survey, an ordinary and usual 
flow of the river has been found by gauging the river near Black Kock 
to bo 2()r),0(>0 cubic foot per seoond. 

That this i.s a reasonable figure is shown by the faet that the drain- 
ago area above Black Kock is 241,285 sipiare miles; that from 87 to ;>0 
inches of rain f:ills in this territory annually, and that 12 im-hes only 
of this rain would ]>roduee 2K>,0ii0 cubic feet per second of outflow. 
This is tho conclusion of C^lemens Horsclud, perhaps the most eminent 
and best qualified hydraulic engineer in this country, and Mr. Wallace 
C Johnson, the eminent hydraulic engineer, who built tho plant of 
the Niagara Falls Hydraulic Power Manufacturing Company, the 



PRESERVATION OF' NIAGARA FALLS. 53 

power plant at ShawiniiifOM Falls and many other vrvoAit power plants, 
and who has spent many yeai's of his life at Nia<^'ara makintr liis com- 
putations and nieasui'ements. 

Mr. Thomas Comerford Martin, editor of the Electrical World and 
En<^ineer, read a paper before the Royal Institution of Great Britain, 
sayirio': "At Niagara thei'e is discharj^ed throu<»h two narrowintr pre- 
ci[)itous channels oidy ;-i,<SO() feet wide and 100 feet hi<»h the contents 
of <),0()0 cubic miles of water, with a reservoir area of 90,000 s(juare 
miles draining- r)00,()00 scpuire miles of territory. The ordinary over- 
spill of this Atlantic set on edj^e is 275,000 cubic feet pei' second, and 
the quantity ])assino- in estimated as hig-h as 1,000,000 tons of water 
per hour. Tiie driftiiif^ of a sJiip over the Horseshoe Falls has 
proved it to have a thickness at that point of over 16 feet. The 
amount of power rei)i'esent(Hl by the wat(ir of the river has been esti- 
mated on dirterent l)as(\s from 0,750,000 to 10,800,000 horsejjower, 
the latter estimate being' that of Sir William Siemens, made some 
yeai's ag"o and is undoubtedly too hig-h." 

There have been a number of independent measurements of volume 
of the Niag-ara, and though the results diti'cr widely, they probably 
do not ditier more than the actual volume of the river at various 
stages of Lake Erie. 

Lyell (1841?) quotes Kugg-les as authority for a volume of 250,000 
cubic feet per second. 

But 1,518,000 <^ross horsepower has an effective productive value in 
manufacturing- of, say, $100 per horsepower per annum, or the inland 
waters of this State have an ultimate economic value, when fully 
developed, of at least $151,800,000 per annum. They may therefore 
be considered, in producinj^ capacity, substantially ecpial to the entire 
ag-ricultural product of the State in 1890, which, according- to the 
United States census of that year, amounted to a total of $11)1,593,009. 
Indeed, taking into account that agricultural values are contiiuially 
depreciating and water-power values appreciating, it is probable that 
ultimately, if New York State agriculture remains on the same basis 
as at present, the water-power values will considerably exceed the 
agricultural values. It is probable, however, if the manufacturing 
industries of this State are ever so far developed as to bring water 
power into use to the extent of 1,518,000 gross horsepower, that the 
local demand for agricultural products will have considerably changed 
the present downwai'd tendency. As an offhand figure we may say, 
therefore, place these two values, at some not very distant date, as 
ecpial and approximating about $200,000,000 per annum. 

E. K. Blackwell, computed by Allen (Am. Jour. Sci., 1841), obtains 
374,000 cubic feet per second. His work was afterwards recomputed 
by D. F. Henry, who obtained 244,797 cubic feet per second. 

In the Annual Report of the Chief of Engineers, United States Army, 
for 1807-08, D. F. Henry gives as a result of observations in August 
and September, 1867, 242,494 cubic feet per second. A year later he 
recomputed from the same data and obtained 240,192 cubic feet per 
second. He also made a new measurement by a different method (see 
report for 1808-69), from which he obtained two results, 304,307 and 
258.586 cubic feet per second. 

W. F. Reynolds (Annual Report of the Chief of Engineers, United 
States Army, 1870), gives the result of observations from June to 
September, 1869, 212,800 cubic feet per second. 



54 PRESEKVATION OP NIAGARA FALLS. 

In the Annual Report of the Chief of Engineers, United States 
Army, for 1871, there is mention of a result, without date of measure- 
ment, 245,296 cubic feet per second. 

In the Annual Report of the Chief of Engineers, United States 
Army, for 1891-92, Quintus, as a result of gauging, gives the volume, 
reduced to mean stage, as 232,800 cubic feet per second. 

Sir Casimir S. Gzowski, from continuous observations at the Inter- 
national Bridge, 1870-1873, gives an average discharge for that period 
of 21:6,000 cubic feet per second. 

1 believe it is safe to say there pours over the crest of the Falls at 
least 265,000 cubic feet per second during ordinary iiovv. 

Assuming that the — 

Cubic feet. 
Niagara Falls Hydraulic Power and Manufacturing Company will divert per 
second 9, 500 

The Niagara Falls Power Company will divert per second 8, 600 

The Canadian Power Company will divert per second 9, 500 

The Electric Development Company will divert per second 11, 200 

Ontario Power Company will divert per second 12, 000 

Niagara Falls Park Railway Company will divert per second 1, 500 

We will have a total diversion of but 52, 300 

or less than one-fifth of the total flow of the river. 

We may now examine the efl'ect that the withdrawal of these quan- 
tities from the river is likely to have on the appearance of the Falls, 
or, as it is termed, on the scenery. At tirst blush, this may seem 
utterly impossible of accomplishment and beyond the powers of com- 
putation, and to do so with precision is no doubt impossible. Never- 
theless, it can be done with a fair degree of approximation, and one 
amply sufiicient for practical purposes. 

The laws of flowing water suffice for the computation of a close and 
suflicient approximation to the effect that would be produced at Niagara 
Falls hy the withdrawal from the river of a stated portion of the total 
flow of 265,000 cubic feet per second. 

Let us make the reasonably exact and truthful assumption that the 
American Falls, at an ordinary stage of the river, consists of a sheet of 
water 4 feet thick, flowing over a broad dam 900 feet long. Such a 
broid dam would discharge, based on the estimate of the Waterways 
Commission, 27,800 cubic feet per second. 

The remaining 237,200 cubic feet per second we will suppose flow- 
ing over a broad dam 1,500 feet long, to do which it would have to 
flow in a sheet of water about 14 feet thick. 

Within the limits of the present inquiry we next find that for every 
5,000 cubic feet of water per second diverted from the river the Amer- 
ican Falls would lose five-eighths of an inch in thickness out of its 4 
feet of thickness of sheet of water, and the Horseshoe Falls would lose 
2i inches out of the 14 feet of thickness of its sheet of water flowing 
over. 

So that if the two American companies divert 18,100 cubic feet of 
water per second from above the American Falls, the thickness of the 
sheet of water passing at ordinary flow over the American Falls would 
be about 3 feet and between 8 and 9 inches instead of 4 feet, and if 
the three companies on the Canadian side divert 32,700 cubic feet per 
second below the crest of the Canadian rapids the thickness of the 
sheet of water passing at ordinary How of the river over the Horse- 
shoe Falls would be about 12^ feet as against 14 feet. Even if the 



PRESERVATION OF NIAGARA PALLS. 55 

effect were greater, could any one, no matter how often he mig-ht visit 
tlie Falls, by ordinary observation detect the ditt'ereuce b}^ reason of 
the diversion above named or the diversion of a much greater quantity 
of water, and when one reflects on the uses for the benetit of mankind 
to which the water is put, is it not a fair case for compromise on a 
basis that will not blight the great industrial center of the United 
States and at the same time preserve the scenic features without notice- 
able impairment? 

B}^ reason of misstatements and gross exaggerations which have 
appeared from time to time in the public prints the public and undoubt- 
edly this committee have obtained the impression that the people 
engaged in the great industries of western New York are without sen- 
timent and have no desire to preserve the Falls. Such is farthest from 
the truth. Notwithstanding the present diversion it is a fact freely 
commented upon that apparently more water is passing over the Falls at 
present than forsome years past; that the legislature of the State of New 
York has not granted a franchise to divert the waters of the Niagara 
River for power purposes since 181)6 — ten 3' ears ago; that the Falls are 
in no immediate danger from any companies who have obtained rights 
from the State of New York; that all lapsed charters, so called, have 
been repealed by the State of New York at the present session of the 
legislature. 

As to the company which I represent, the Niagara Falls Electrical 
Transmission Companj^ it is a corporation organized and existing 
under the transportation corporation laws of the State of New York, 
with a capital stock of $3,500,000. It is authorized by law to build 
and operate power transmission lines, transforming stations, and dis- 
tributing systems in the counties of Niagara, Orleans, Erie, Genesee, 
and Monroe, in the State of New York. It has been authorized to do 
business by the commission of gas and electricity of the State of 
New York. It was organized for the purpose of selling in the United 
States all of the electrical energy which the Electrical Developing 
Company is authorized to so dispose of under its charter from the 
provincial government, to wit, 62,500 horsepower. 

The development of this American distribution company has pro- 
ceeded apace with the development of power. It has invested in the 
State of New York in transmission lines, distributing systems, rights 
of way, and necessary acquisition upward of $800,000. It is directly 
or indirectly through its subcompanies under contract with more than 
twenty firms and corporations to furnish power. It is under contract 
with the municipalities of La Salle and Middleport, in the county of 
Niagara, with Albion and Waterport, in the county of Orleans, and 
Brockport, in the county of Monroe, to furnish those municipalities 
with electric current for lighting the public streets and the private 
and public dwellings, all of which contracts contain severe penalties 
for their violation. It owns distributing systems in the municipali- 
ties of Niagara Falls, La Salle, Hartland, Middleport, Gains, Carlton, 
Waterport, Albion, and Brockport, and is under contract to furnish 
the western House of Refuge, near Albion, with power, and has a 
transmission line constructed to that institution. 

It is under contract with the Bulialo, Lockport and Rochester Rail- 
way to furnish that company with power for its operation. That road 
when completed will extend from Niagara Falls to North Tonawanda 
and by one branch into the cit}' of Bulialo, by another branch into 



56 PRESERVATION OF NIAGARA FALLS. 

the city of Rochester. This road is entirel}^ financed, a good portion 
of the right of waj^ has already been purchased and about one-third of 
the construction work done. Contracts aggregating many millions of 
dollars have been let. All of the al)ove are dependent solely upon the 
Niagara Falls Electrical Transmission Company for power. To pre- 
vent the transmission company from obtaining power from the Elec- 
tri<-al Development Company by legislation would result in abrogating 
contracts now existing and partially completed, duly and legally 
authorized and entered into under the laws of the State of New York. 
To prevent by this bill the transmission company from obtaining power 
from the Electrical Development Company would amount to a confis- 
cation of all of its property in the United States besides subjecting it 
to untold sums in damages. 

To prevent this company from supplying the municipalities, rail- 
roads, and factories which are and will be dependent solely on it for 
power would destroy millions of dollars of investment made by the con- 
tracting parties in good faith under the laws of the land, would blight 
the transportation, manufacturing, and commercial industries of west- 
ern New York and cause widespread disaster. This company has 
obtained every legal right, franchise, and consent incident to the right 
to do business, as required by the State of New York, and asks that 
its contracts be not impaired. 

We do believe it highly commendal)le that steps should be taken to 
preserve the scenic features of the falls, but in so doing we do not 
believe it necessar}^ to confiscate property or destroy manufacturing, 
commercial, ajid railroad enterprises entered into and now partially or 
nearly completed. If the object of prohibiting the transnnssion into 
the United States of electrical power is to prevent further power 
development on the Canadian side, that plainl}^ can not be accom- 
plished by preventing the transmission company from taking and dis- 
tributing in the United States the power from the Electrical Develop- 
ment Company, for the latter company now has a practically completed 
power plant using 11,200 cubic feet of water and developing 125,000 
horsepower. 

This prohibition, if desirable, should not apply to prevent the trans- 
mission company from taking and distri])uting that portion of the 
electrical energy of the Electrical Development Compan}- available for 
the United States. Such prohibition would result only in the destruc- 
tion of the transmission company and the industries dependent upon 
it, which are American industries sustained by American capital 
employing American labor. 

The Waterways Commission in their report say: 

The sums of money invested or being invested in the works now in operation or 
under construction and in the industries dependent upon them amount to many mil- 
hons of dollars. It is probably not expedient to attempt the withdrawal of the rights 
thus utilized. 

So far as the transmission company is concerned, it has obligated 
itself with the Electrical Development Company to distribute its power 
available for the United States, and has obligated itself to furnish this 
power to the municipalities, manufacturers, and railroads of western 
New York, thus having utilized the rights granted by the State of 
New York and its municipalities. Ordinarily there can be little objec- 
tion to having transmitted to the United States cheap power which 
will directly and so enormously add to our wealth and prosperity. I 



PRESERVATION OF NIAGARA FALLS. 57 

believe the commission do not view importation of power as an offense 
as long as it is not an incentive to new development. While I fail to 
see the necessity for any prohibition against the bringing of electricity 
into the United States, 1 ask if such a prohibition is imposed it does 
not apply to companies who have their plants completed, or nearly so, 
and that the transmission company be permitted to distribute in the 
United States the available power of the Electrical Development Com- 
pany for that purpose. 

The Chairman. In regard to this estimate as to the amount of water 
passing over the Falls, it would be interesting to the committee if 3^ou 
would refer to it, giving the document and page where it may be 
found. Some of the estimates are materially larger than others. 
There has been a recent report of the Chief of Engineers of the United 
States Army, for 1900, in which the volume of water discharged at an 
average stage is mentioned as 222,400 cubic feet per second, and then 
the volume has been estimated to be as low as 180,800 cubic feet per 
second at a low-water stage. We would be inclined to regard the 
estimate of the army engineers as more accurate. If there are other 
estimates which make the amount greater we would like to have an 
exact reference to them. 

Mr. Dudley. I make these references for the purpose of sustaining 
my conclusion that it is impossible to obtain exactly the amount of 
water flowing over the Falls. I can not sa}^ that one measurement is 
any better than the others. 

The Chairman. We would like to have the exact reference. The 
variety of figures given would tend to show that the amount can not 
be computed with exactness. We would like to examine the estimates 
in order to ascertain as near as may be their credibility. 

Mr. Dudley. The measurements from which I am quoting are 
those of Clement Herschel, who is, I think, recognized as the principal 
authority as to the accepted amount of the discharge of Niagara. I 
think I can file aflidavits from a number of observers to strengthen 
that conclusion. 

Mr. Alexander. When the del Homedieu bill was passed did it not 
give an unlimited supply of water? 

'Mr. Dudley. It was never passed. That bill was vetoed by Gov- 
ernor Odell. I was in the legislature at that time. 

Mr. Alexander. Was it not a bill which vested the power of 
eminent domain? 

Mr. Dudley. The entire bill was vetoed. It never became a law. 

Mr. Alexander. Did not the del Homedieu bill carry an unlimited 
supply of water as to eminent domain — or, rather, were there not two 
bills? 

Mr. Dudley. I think there was but one bill. That franchise was 
amended some years ago. The city of Lockport desired an extension 
of it. 

Mr. Alexander. That bill was absolutely killed. 

Mr. Dudley. It was. There has been no bill amended b}^ the State 
of New York since 1896. The bill amended at that time was one 
which confirmed the rights of the hydraulic company which existed. 
I prepared that measure myself. 

The Chairman. What companies have been organized for the pur- 
pose of transmitting power tg the United States? 



58 PEESERVATION OF NIAGARA FALLS. 

Mr. Dudley. I would not presiinio to answer for any company 
except the one which I represent. It is recog-nized (and this is a round- 
about answer) that there is not at the present time on the Canadian 
side the amount of power in point of capacit}^ that can be generated. 

It undoubtedly was the intention of those companies having to do 
with this matter, and who built plants, that they would get a portion, 
at least, of the power developed and would sell it on the American side. 
The extent of that was problematical on account of the long distance 
of transmission, which was then an unknown factor. That has devel- 
oped so wonderfully, by reason of what I might term late experiments, 
that it is now impossible to say whether these companies can not make 
and transmit the power on the Canadian side, because power is going 
to be transmitted as far as Windsor, which is opposite Detroit. It is 
to be transmitted also to other commercial centers. The original 
object undoubtedly was to dispose of some portion of the power on the 
American side. Just what proportion I do not think anybody knows. 

Mr. Ransdell. About how far can it be profital)ly transmitted? 

jMr. Dudley. Computing coal at its present price, 1 should say 
about 200 miles. 

Mr. Bishop. What is the percentage of loss in transmitting it that 
distance? 

Mr. Dudley. I am not qualified to answer that question, not being 
an engineer. 

The Chairman. It depends on the kind of wire used and the amount 
of power taken off. 

Mr. Dudley. Ordinarily the loss is lessened in proportion to the 
amount of wire used in transmission. 

Mr. Ellis. What are the other uses for that power? 

Mr. Dudley. In the operation of street cars in Canadian cities and 
in furnishing the corporations of Toronto and other cities in Canada 
with power. 

The Chairman. You say you think it is desirable to take measures 
to preserve the scenic beauty of the Falls. The committee desires 
information on that point. What measure do you think should be 
taken to preserve the scenic beauty of the falls. 

Mr. Dudley. I was never called upon to consider that until last 
Friday, but my mind has been working rapidly ever since, and yet I 
do not know that I have come to any conclusion that would be worthy 
of presentation to this committee. I do not think, however, that the 
limit has yet been reached, so far as it relates to the diversion of 
water, which will affect in any way (at least to the observer) the 
scenery of the Falls. A prohibition can be imposed whenever it is 
determined that prevention of further diversion of the water is neces- 
sary — a prohibition that would accomplish results. 

The Chairman. Is it not true that the level of the lake has been 
higher for several 3'ears past than the average level? 

Mr. Dudley. That has been produced by a variety of natural causes. 

The Chairman. Is it not true that the movement of the level of the 
lakes has been in cycles, so that it is likely in a few years instead of 
being above to be below the normal level? 

Mr. Dudley. I think that is so claimed by some scicntitic gentlemen. 

The Ciiaiuman. Can you tell with any certainty that the ffow over 
the falls will not in normal seasons materially diminish? 



PRESERVATION OF NIAGARA FALLS. 59 

Mr. Dudley. A man named William Boom, the oldest resident of 
Niagara Fally, who has lived in Niagara Falls seventy-live 3'ears, and 
who has made observations from time to time of the watei's that flow 
over the falls, reckoning by certain rocks above the falls, stated on 
Sunday last that the waters, notwithstanding the present diversion, 
shows that the flow is higher now than it has been for some years 
past, and that there had never been any appreciable decrease in the 
average flow of the water. There have been times, as has been referred 
to here, when the winds and the ice would cause the flow to be modi- 
fled enormously, but the average has been maintained during that 
seventy-five years, according to the observations of this man. That 
impressed me in the belief that there is never going to be any particu- 
lar change in the fall of water of the Niagara River. 

The Chairman. You make an estimate of 40 per cent. Do you 
think that so great an amount of water can be taken out of the river 
without an injury to the scenic beauty of the Falls? 

Mr. Dudley. I can only state the matter, as the problem has been 
solved by those who are competent, such men as Wallace and Herschel. 
They have reckoned according to well-known methods, which can be 
substantiated if there is any question about it. I know in a general 
wa}^ as to the fall of water and the efl'ect of it. I know that it is not 
proved by mathematical calculation, nor by actual observation, but 
the results obtained are about the same. I agree entirely^ with what 
Mr. Cooper said concerning- the method by which they arrive at those 
conclusions. 

The Chairman. In determining the scenic grandeur of the falls you 
would ignore the volume of water going over them? 

Mr. Dudley. 1 have lived in Niagara Falls a great many years. 
There are only two ways of determining the appreciable flow of water 
over the falls, and those methods are by the eye and the ear. It is 
absolutely impossible for anyone to detect by the eye the difference 
between 12i feet of water and 14 feet of water, or the difference 
between 3 feet 9 inches and 4 feet of water. So far as the eye is con- 
cerned there is no one who can determine that, and I want to be per- 
fectly fair and truthful. 

So far as the ear is concerned, there would be great difliculty in 
hearing your own voice or in talking to your companion if you were 
trying to judge by that volume of sound. The volume of sound from 
the Falls is overwhelming, and will be just as overwhelming with 3 
feet 9 inches of water as with 4 feet of water, or it will be just as 
overwhelming with 12 as with 14 feet. If you had some instrument for 
measuring the volume of water, and that instrument was a mile away 
from the Falls, it might be possible to appreciate it, but people do not 
view the Falls from that distance. 

The Chairman. You say that 40 per cent might be diverted? 

Mr. Dudley. At that point the danger begins to increase, but, tech- 
nically speaking, of course, every drop diminishes it. 

The Chairman. What is the quantit}^ or the number of cubic feet 
per second on the Canadian and American sides, respectively, that you 
regard as belonging to companies having rights? 

Mr. Dudley. I think the Waterways Commission decided that. 

The Chairman. That does not include the General Electric Company ? 

Mr. Dudley. No. 



60 PRESERVATION OF NIAGARA FALLS. 

The Chairman. Do 3^011 regard any compan}^ as having rights aside 
from those mentioned in the report of the International Waterways 
Commission ? 

Mr, Dudley. 1 have examined the franchises of the General Electric 
Company, and so far as 1 have examined them I believe that is a 
vested right. I think all the companies have vested rights so far as 
taking water below the Falls is concerned. 

The Chairman. Taking water below the Falls — below the rapids. 

Mr. Dudley. Below the rapids. I think that is the only way to 
judge. I do not know anything about the Canadian side. 

The Chairman. Would you say the General Electric Company is 
the only one outside of those mentioned in the report of the Inter- 
national Waterways Commission having a right to withdraw water 
above the Falls? 

Mr. Dudley. I would. 

The Chairman. How about the Lockport Supply Company; that 
is a transmission company, is it not? 

Mr. Dudley. Yes. 

The Chairman (to a bystander). Does your company claim the 
right to take water from above the Falls ? 

Bystander. Yes, sir. 

Mr. Dudley. I withdraw any statement I made respecting that 
situation, because I do not pretend to have a knowledge of the legal 
rights. 

Mr. Ellis. This General Electric Supply Company is not one of the 
five mentioned? 

Mr. Dudley. No, sir. 

Mr. Ellis. The Canadian Irrigation and Water Supply Company — 
that is the General Electric Company? 

Mr. Dudley. Yes, sir. 

The Chairman. You have offered no suggestion as to the methods 
which should be adopted. I would like to have your views on that 
point. 

Mr. Dudley. I am interested in the Electrical Transmission Com- 
pany as I have explained, and I will ask that we be permitted to carry 
out our contracts. That is as far as I represent the power company in 
which I am concerned, and as representing the city of Niagara Falls 
and other municipalities through western New York, I will state that 
the amount of water diversion which will impair the scenic qualities 
of the Falls ought to be definitely determined. In my opinion that 
amount has not yet been reached, and will not be reached even by 
taking the power desired by the General Electrical Company. When- 
ever that is ascertained or reached then it will be time to prohibit 
further development along that line. I do not wish to advocate any 
power monopoly because I am not interested in them, but there is a 
time coming when, after due and serious deliberation, the develop- 
ment of any further scheme may be prohibited. 

The Chairman. Then you would favor waiting until the time is 
reached when the beauties of the falls are materially injured by the 
diversion of the water before you would favor legislation ? 

Mr. Dudley. No; but I would say that the information that has 
been given to 3^ou has been — except of course as to the statement of 
the International Waterways Commission — largely misinformation, 
and until you obtain the accurate facts you will not be able to deter- 



PRESERVATION OF NIAGARA FALLS. 61 

mine when the time is reached that the falls are in imminent clanocr. 
No franchise which is now outstanding will ever impair the scenic 
qualities of the falls. 

Mr. Lawrence. What percentage of the flow of water over the Falls 
do you consider is now authorized to be diverted? 

Mr. DtJdley. I can not answer that question, because no limit is 
fixed on this general electric charter. 

The Chairman. Is it not 17,000 cubic feet? 

Mr. Dudley. In my opinion no franchise on the Canadian side is 
concerned. 

Mr. Lawrence. What percentage of the flow do you consider it 
would be safe to be authorized to be diverted ? 

Mr. Dudley. There would be no risk in anything up to 30 per cent. 

The Chairman. Then you do not agree with Mr. Cooper's estimate 
of 40 to 50 per cent? 

Mr. Dudley. 1 do not recall what his estimate was. 

The Chairman. Your general opinion is that it should be not more 
than 30 per cent? 

Mr. Dudley. 1 should say that surely there should be no risk of 
impairment if that amount of water were diverted. 

Mr. Lorimer. The American Falls is more shallow over the crest 
than the Canadian Falls, and a like percentage would more quickly 
aft'ect the scenic beauty there than it would on the Canadian side. 

Mr. Dudley". Not necessaril}^, because the waters will readjust 
themselves. If a certain amount of water were to be taken from the 
American side it would be unwise to take more than 30 per cent. 

The Chairman. Some estimate has been made of the amount that 
might be taken on the Canadian side near Goat Island. 

Mr. Dudley. I do not know about that. So far as the electrical 
company is concerned — that is, the company in which 1 am interested — 
the amount it takes does not affect the falls one particle. 

The Chairman. You take from the Canadian side? 

Mr. Dudley. Yes; at a point where it can not b}' any possibility 
affect the flow of water over the American Falls, because it does not 
run faster over the falls than through the tunnel — the velocity is 
greater. 

Mr. Ransdell. On page 9 of the report of the International Water- 
ways Commission the amount is stated as 60,1)00 cubic feet per second. 
They do not mention the electrical company at all. 

Mr. Dudley. No. 

Mr. Ransdell. Another gentleman is seeking a contract for a good, 
big amount, and there are two other companies wanting 20,000 and 
30,000 feet per second in addition to the 60,900 cubic feet. Can you 
tell how much more the Canadians were going to claim? 

Mr. Dudley. I believe there is a feeling in Canada, the same as in 
the United States, that the commercial importance of this matter is as 
great as the aesthetic importance, and that up to a point the people of 
both countries are desirous of using them for commercial purposes. 
It seems to me there can be no question about that. 

Mr. Ransdell. I would like to know how far we should rely on 
this report here when they say there is that much authorized, and you 
gentlemen that have come to us here claim that this electric-power 
compan}'^ has an unlimited amount. This is on page 9, where the total 
quantity of water to be taken from the river by works now authorized 
p N F — OG 5 



62 PRESERVATION OF NIAGARA FALLS. 

is given at 60,90<) cu1)ic feet per second; but tliere they make no men- 
tion of this electric company. 

Mr. Ellis. This other company is chiiming some rights additional. 

The Chairman. They are yet to be heard. 

Mr. P]llis. Then that will make four on the American side; is that 
the idea? 

The Chairman. Yes. 

Mr. Dudlkv. So far as the transmission company is concerned we 
ask no rights on the American side. 

Mr. BuiKJKSS. You say you think 30 per cent ttiken from the stream 
would not impair the falls. 1 want to understand whether j^ou mean 
30 per cent of the water that goes over the falls or 30 per cent of the 
volume of the water taken out above the falls, because 1 do not under- 
stand that that means the same thing. Which do you mean? What 
I want to get sti'aight in my own mind is this. I get it from these 
engineers that 30 per cent of the volume of the water taken out a^beve 
would not reduce the depth over the falls 30 per cent. 

Mr. Dudley. Oh, no; no, it would not. 

Mr. Burgess. Now, then, when you say 30 per cent can be safely 
taken without impairing the beauty of the Falls, do you mean 30 per 
cent of the depth flowing over the Falls or 30 per cent of the volume 
above the Falls? 

Mr. Dudley. Thirty per cent of the water, because we measure it 
in cubic feet per second. I thank you, gentlemen. 

(At 11.35 o'clock a. m. the committee took a recess until 12.30 
o'clock p. m.) 

after recess. 

The committee met pursuant to the taking of recess, Hon. Theo- 
dore E. Burton (chairman) in the chair. 

STATEMENT OF JOHN L. ROMER, ESQ., COUNSEL, NIAGARA FALLS 
HYDRAULIC POWER AND MANUFACTURING COMPANY. 

Mr. lioMER. 1 bold a retainer for the Niagara Falls Hydraulic Power 
and Manufacturing Compan3^ 1 am not here exactly as the lawyer 
of the company, but I happen to be one of the directors, and in my 
capacity as one of the executors of Jacob F. SchooUkopf , the founder 
of the company, and who became the individual proprietor of this 
canal before the organization of this compan}^ and as one of the execu- 
tors of his estate and as the executor of one of his deceased sons, who 
takes certain stock in this company under his will, I am here to pro- 
tect, so far as I may, the individual rights and interests of this family, 
the stock of this company being held very largely by the Schocllkopf 
family, only a few shares being held by some other individuals. 

In 1809 the State of New York granted, by letters patent, to Augus- 
tus Porter, and from that time on to 1813, a number of the farm lots con- 
stituting apart of what is known as the mile reserve, bordering on the 
easterly })ank of the Niagara River. The Porters purchased lots 41 to 
44, and those lots extend from a point on the river above the falls to a 
point on the river below the falls. Our canal has its intake on lot 41, 
and the intake is known as Port Day. It is the last point which can 
be reached by boats on the Niagara River, and in the early days Port 
Day was a port of entry. Not very much merchandise came into this 



PEESERVATION OF NIAGARA FALLS. 63 

country from Ctmada at that point, but still it was a port of entry and 
was called Fort Day. A tui>" or a small launch or vessels of light draft 
can go with a reasonable degree of safety from points above on the 
river to our inlet; hut as for navigation below our inlet, if anyone 
wishes to attempt it 1 would prefer to go ashore. 

In 1846 the Porters caused surveA^s to be made laying out the 
hydraulic canal, l)eginning at Port Day and running down to the basin 
on lot 44 below the Falls, on the high bank of the river. In 1852 the 
Porters, then being the owners of this land, entered into a contract with 
one Walter Bryant, of Boston, for the construction of the hydraulic" 
canal. 

The Chairman. What year was that? 

Mr. RoMER. 1852. They entered into this contract with Mr. Bryant 
for the construction of the hydraulic canal through a strip of land 
they set apart for the purpose 50 feet in width tlirough the village to 
the high bank below the Falls, about 1 mile in length, and the con- 
tract with Brvant gave him the right to construct this canal to the 
full width of 100 feet. 

Bryant began the work of excavation and construction, and that 
canal was opt^.ed iirst to a width of 35 feet, and I think it was in that 
condition that Bryant did a part of the work; and his successors, a 
man b}^ the name of Miller, of Philadelphia, and afterwards Horace 
H. Day, of India River fame, put in a number of hundreds of thou- 
sands of dollars , Day sunk his entire fortune in completing the 
canal, and when Day had ceased his work, which was along in the 
sixties sometime, there was upon the basin below the canal one small 
grist mill having a capacity of 40 bushels of tlour a day. The canal 
and property continued in that condition until it was })ought by Jacob 
F. Schoellkopf at public auction, Mr. Day's finan(;es having reached a 
point where he could no longer carry it. 

I think that purchase was in 1877. Mr. Schoellkopf, as anyone 
familiar with the histor}^ of Buffalo and eastern New York will know, 
was one of the most enterprising citizens we ever had. He began life 
as a tanner, and he had taimeries in IMilwaukee and Buffalo, as well as 
several other places. He was then in the milling business at Black 
Rock and he began constructing this canal, and at once he erected a 
mill having a capacity of 1,500 barrels a day, and put the wheels down 
a dei)th, I think, of 50 feet and set the thing going, and demonstrated 
in the carrying on and operation of that mill that the waters of 
Niagara Falls in large volume could be used in high heads profitably. 
Later on other mills came there. The Oneida Community moved its 
works from Connecticut and began the manufacture of silver-plated 
ware there. 

Then the work of widening the Canal began. Mr. Schoellkopf 
organized the Hydraulic Power and Manufacturing Company, with a 
capital of $100,000; not excessive. It has never been increased. The 
stock is held by his own family very largely. From time to time new 
mills were erected, attracted there b}^ the cheapness of the power. 
That called for the enlargement of the canal. It was finally enlarged 
to 70 feet. Now it has been enlarged to the full width of 100 feet, 
except under a couple of the streets of Niagara Falls, Third and Fourth 
streets, where the city had erected bridges only 70 feet in width, and 
we have had some litigation with them over the question of who should 
construct the new bridges, and we have now entered into an agreement 



64 PRRSEUVATION OF NIAGARA FALLS. 

with tho, city by wiiicli tlio, ("oiiipany is to oroct the new ))i-i(li^os and 
widen tlieni to lUO f(>(>t, and leave it to tlu; ultimate r(>sidt as to whether 
the c.oinpany or the city shall stand the expense. The work is iifoino- on. 

Wc had no license or charter from the city to take water from the 
river. In the genesis of this canal it was supposed that the rifj-ht of 
the riparian owner under the common law was sullicient to enable tho 
owner to draw water for millinjif and manufacturing' purposes from 
the river, returnino- it to the stream without injury to the owners 
below; that that was a sufficient title to draw that water. 

The Chairman. I understand when the orioinal canal was constructed 
the riparian owner owned the bank from the intake to the outlet? 

Mr. KoMEU. 1 understand so. No; the Porters may have sold some 
of the ])roperty down alonjjf the rapids and nearer to the Falls. 

The (hiAiuMAN. First it })elonoe(l to tho State '^ 

Mr. KoMKU. First it belonged to the State. 

The Chairman. Then it went to the Porters? 

Mr. RoMiOR. Then it went to the Porters. From the Porters it 
comes to us. They owned all of this land. Then they sold ofl' from 
time to time as the people desired residences or something of that sort 
along the river, but they owned all of the land from lot 41, where our 
inlet is, througli the entire length of the canal, 4,400 and odd feet. 

The Chairman. At any rate, they owned where their canal was, 
without any question of the right of eminent domain? 

Mr. KoMKR. Yes, sir; without any ({uestion of the right of eminent 
domain; and we own it now. 

As J say, we depended upon our rights as riparian owners. There 
came a time ten or twelve years ago— in 1S1)4 — when there was about 
as nuich public clamor about the (h^struction of the Falls as there is 
now. The State in the meantime hud aecjuii'od title to the landsonthe 
shore of the river from the point where our propiu'ty is located down 
through the village and below the Falls and had devoted it to the pur- 
poses of a public park, free for every t)ody. Mr, Andrew II. Green, 
who had that in charge, became alarmed because the legislature was 
g)-anting charters to everybody that came to draw large amounts of 
water from the canal, and ho began to op])ose the granting of those 
privileges, lie was a member of the State convention which met in 
our State and formed a new State constitution in 1S94. 

Mr. C'hoate, later ami )assador to Fngland, was chaii'inan of that con- 
vention, and Klihu II. Root was an inlluential member of the convention, 
and Mr. (Jreen brought before that convention this (juestion of the 
divei-sion of the waters of the Niagara River. A suhconnnittee was 
appointed consisting of five or six gentlemen, who went to Niagara 
and spent two or three days in investigating tlie subject and looking 
at it with their own eyes, and they reported to tho committee in this 
wise: 

" If the company under discussion " — that is, the Niagaia Falls Power 
Company— " uses' its full limit of 200,000 horsepower, it would draw 
from the river about 6 per cent of the entire volume of water." 

It also says on page 7: 

Tliat the total limit for both companios would be a little over 9 per cent for the 
total flow of the river. 

It also says on page 11: 

"Two of them," that is, the Ningai-a Falls Power Company and 
the Niagara Falls llyilraulic Power and jNlanufacturing Com[)any, 



PRESERVATION OF NIAGARA FALLS. 65 

" have expended large sums of money and are now operating their 
respective phirits, and the amount of water which they can take will 
not do appreciably any injury to the Falls," 

Now, that was the report of the subcommittee of the committee on 
legislative powers of that convention, after having a full and complete 
investigation as to the state of things at Niagara. 1 obtained at that 
time, for the purpose of presenting it to the committee for its con- 
sideration, from Mr. llirshell, the engineer whose name was mentioned 
here this morning, an estimate as to the difference which would be 
made in the American Falls if the power to which both of these com- 
panies were entitled (not what they are actually using, but what was 
necessary to fulfill their grants, 200,000 to one company and, I think, 
200,000 to ours), an estimate as to what difteronce the subtraction of 
the water necessar}^ to make that amount of power would make in the 
flow of water over the American Falls. 

Mr. Hirshell reported to me that if both of these companies exer- 
cised their full right to withdraw that power, it would make a difl'erence 
in the thickness of the sheet of water flowing over the American Falls 
of 8 inches. That was the statement made by Mr. Cooper hero yester- 
day. It was the first time that I ever saw him, and I was glad to hear 
him sa}^ that, showing that the engineers who possess some technical 
knowledge of this matter are agreed in the matter. 

Now, corroborative of this is this other fact, that for twenty years or 
more the Niagara P'allsHydraulicPower and Manufacturing Company 
has maintained at Port Day iron gauges marked in feet and inches, 
fastened on the masonr}' in the wall of their inh^t, indicating the height 
of the water as above tidewater at Alban\\ The United States author- 
ities ran their levels and settled on some point there in the park, 
where they erected a bench mark showing 505.61 feet above tide water 
at Albany. These gauges were fastened on the wall of the inlet in 
accord with that determination. 

Until the electrical power came to be used the mills there at Niagara 
shut down on Sunday. They worked during the week days, but on 
Sundays there was no draft of water from the canal. Latterly, since 
they haV'C been using electrical power, a good many of the concerns 
find it necessary to use the power constantl}'. They can not shut down 
without loss. So they use it on Sundays as well as week days. But 
during the time I speak of when the mills shut down on Sunday's the 
record of these gauges taken for twenty years show that there was no 
difl'erence at Port Day in the level of the river on Sundays from what 
it was on week da3's, other conditions being equal; so that the draft 
of water from our canal made no difference which could be reckoned by 
the eye of the observer or on the gauges there established. You can 
not detect the difference. 

Mr. Jones. How much water were you taking out there, then? 

Mr. RoMKR. Pretty near as much as we are now. 

Mr. Humphreys. Where was that gauge located? 

Mr. Komer. Just at the opening of our inlet on the river. 

Mr. Jones. Above or below? 

Mr. RoMER. On the lower side of the intake. 

Mr. Humphreys. How far below? Right at it? 

Mr. RoMER. Right at the wall of the inlet. There is a wall of 
masonry there, and on the corner of that, right at the river's edge, 
this gauge was established. 



G6 PRESERVATION OF NTVOARA FALLS. 

Mr. Jones. How manj^ cubic feet are you taking uow? 

Mr. RoMEU. Ahout -1-,0()0 cubic feet now. 

Mr. rIoNKS. That is the actual use now? 

Mr. KoMEK. Yes. sir. 

Mr. Jones. That was the actual amount taken at that time when 
these readings were made? 

Mr. KoMEK, No, sir; it was about 3,000 feet then. 

Mr. Alexander. How nmch are 3'ou allowed to take? 

Mr. koMEK. ^Ve are allowi^l b}^ the State of New York to take 
9,500 cubic feet a second. But the winds make a great difference in 
the height of the river. An ordinary northeast wind blowing for a 
day or two will lower the river 2^ or 3 feet. 

Mr. Jones. The more water that is taken out, the greater the dijffer- 
ence that will be made bv the water taken out. 

The Chairman. We should be glad if you would make clear. to us 
how your statement about the eli'ect of the winds really affects the 
question. Of course every stream is affected by the wind more or 
less. For instance, the Delaware River below Philadelphia is some- 
times higher and sometimes lower because of the wind. The Patapsco 
River below Baltimore is sometimes higher and sometimes lower 
because of the wind, and we have had hearings here where parties 
sought to state the number of days per month during which the height 
of the water was affected. One thing that is very clear to the com- 
mittee is that they have never gone away abandoning their claims for 
deeper channels because occasionally the wind made them deeper. I 
think on the same principle we would hardly think that the beauty of 
the Falls could be preserved irrespective of the amount of the average 
flow because occasionally the wind raises the level. 

Mr. RoMER. Yes, sir; I understand. But the' wind also raises a 
good deal of the clamor, I think, that we hear about the destruction 
of the Falls. 

The Chairman. Your idea is that those persons happen to be there 
on some days when the wind is from the east and has lowered the 
water? 

Mr. RoMER. Yes, sir; and if they happen to see a rock bobbing up 
in the rapids that they never saw before, they inuuediately l)egin to 
exclaim about what a shame it is that the power companies should be 
allowed to draw so nmch water from the river. As a matter of fact, 
it is not the power companies at all, but it is the wind blowing up the 
lake. 

1 have here a chart made up from the readings of those gauges and 
showing how the river fluctuates. There it came down 2 or 3 feet 
[indicating on chart], owing to the wind; but it soon reestablished 
itself on itsordiiiar}^ level. It fluctuates considerably in that way, not 
as a result of the draft of the nulls, because that is substantially con- 
stant, but because of the winds. 

]\Ir. HuMiMiKEYS. Is there any gauge established below this intake 
at any considerable distance, sev^eral hundred feet or more below it? 

Mr. RoMER. I do not know of any. Our intake is above the rapids, 
and it is at a point on the rivei' where the river is over a mile in width, 
at a point considerably above Goat Ishind. Here is (loat Island [indi- 
cating on map], the Falls being at tlu^ lower point. This is what you 
may term the, Aiueiieaii l)ranch ol" the ri\cr | indicating]. Here is the 
Horseshoe, and our intake is at that brown spot [indicating on map] — 



PRESEEVATTON OP NIAGARA FALLS. 07 

above the point where there is any danoerouw velocit}^ to the stream, 
and above the rapids — and the water that we take there we claim is at 
a point in this river where the natural law by which water seeks its 
own level is operative, and, as we draw water from that point, the 
stream, a mile in width, soon equalizes it and makes good any subtrac- 
tion that we make, and that is one reason we think there is no appreci- 
able lowering- of the water by reason of what we take through that 
canal. 

Mr. Humphreys. In other words, you really take from the Cana- 
dian side? 

Mr. Homer. Yes, sir; the commission's report says that iive-sixths 
of the water comes from the Canadian side and one-sixth from the 
American side. 

Mr. Ellis. Is there not any current? 

Mr. RoMER. Yes, sir. I do not know about the currents. 

Mr. Ransdell. Where do the Canadian companies take their water? 

Mr. RoMER. From a point below the head of Goat Island, along here 
[indicatingj, so that they can not draw from the American branch, and 
we take froin a point away above there, so that we take from the main 
stream, and it can not be said that we take from the American branch 
of the river. 

Mr. Ransdell. Where do the other American companies take their 
water from? 

Mr. Romer. That little place there [indicating] is the intake of the 
Niagara Falls Power Company. 

Mr. Ransdell. They take above you? 

Mr. Romer. Yes, sir. 

Mr. Ransdell. How much above you? 

Mr. Romer. Eight hundred feet. 

Mr. Jones. Does anybody take below you? 

Mr. Romer. No, sir; we are at the lowest point on the river where 
water can be taken. The State owns from there on down below the 
the falls. 

Mr. Davidson. How far are you from the head of Goat Island? 

Mr. Romer. Half a mile from the head of Goat Island. 

Mr. Humphreys. The State does not permit anybody to take the 
water from the part that it owns? 

Mr. Romer. No, sir. 

Mr. Ellis. How far above the point you have indicated does this 
General Electric Company get its water? 

Mr. Romer. That is opposite Cayuga. That is above here [indi- 
cating]. 

A Bystander. It is 3 or 4 miles. 

The Chairman. How far is that? 

Mr. Romer. I think that is 8 or 4 miles above our intake. 

Mr. Alexander. It is farther than that, is it not? 

A Bystander. It is 4 or 5 miles. 

Mr. Alexander. Five or 6 miles, I should say. How far is the Falls 
below the lake? 

Mr. Romer. It is 22 miles; it may be a little more by the river. 
This section of the map printed in red is the land of the Niagara Falls 
Power Company; that indicated in brown is the land of the United 
Power Company. Here is where the njills and power houses are 
located, below the Falls [indicating on map]. 



68 PRESERVATION OF NIAGARA FALLS. 



The Waterways Commission report that 26,700 cubic feet of water 
flow over the American Falls. About one-sixth of that they state is 
subtracted from the American branch of the river, or the American 
branch is lessened that much. That would reduce the amount flowing- 
over the American Falls really, because of these New York compa- 
nies, by 4,450 cubic feet per second. That is all that is chargeable to 
the American branch of the river by reason of the exercise of these 
rights b}' the American companies to the full extent of their rights. 
That is about 16 per cent. 

Now, our draft which wo are permitted to draw as the State of 
New York has given us permission to draw is 9,500 cubic feet of water 
per second, and if we exercised that right the proportion of that water 
which would be subtracted from the American branch of the river 
would be about 6 per cent of the water naturally flowing over the 
American Falls, and that is a pretty small percentage. 

In 181)6, the agitation over the destruction of Niagara Falls continu- 
ing, Mr. Green asked the Attorney-General if he would not write an 
opinion defining our rights, and the Attorney-General said he thought 
we were a nuisance and were to be enjoined, and all that. Of course 
we did not acquiesce in an}- such opinion as that; but we thought that 
it was time to do something, and although we had not had any charter 
and had not asked the State for any privileges we thought that it was 
time that the subject should be put at rest so far as our company was 
concerned, and we went to the State of New York and presented our 
case, and Mr. Dudley was a member of the assembly and had charge 
of the bill and secured its passage, and I would like to read that. It 
is as follows: 

The people of the State of New York, represented in senate assembly, do enact as 
follows: 

"Section 1. The right of the Niagara Falls Hydraulic Power and JManufacturing 
Company to take, draw, use, and lease, and sell to others to use the waters of Niagara 
River for domestic, municipal, manufacturing, heating, lighting, and other business 
purposes is hereby recognized, declared, and confirmed." 

That is our charter, if you can call it a charter, from the State of New 
York. They recognized our conmion-law right to take this water, and 
declared it and conflrmed it. Then, they go on and say that the exer- 
cise of this right on our part shall be limited to taking as much water 
from the river as we can take through a canal 100 feet wide and of the 
uniform depth and slope of 14 feet, and that can be supplied by the 
draft of 9,500 cubic feet of water per second. 

Mr. Ellis. Do 3'OU think you lost any rights by that bill? 

Mr. KoMER. We have had our canal 100 feet wide and do not expect 
to enlarge it or make it any deeper than 14 feet, and as long as the 
State saw flt to recognize our right to that they did not take anything 
we expected to take. 

Mr. Ellis. Do you think that you gained anything from the State 
b}^ that that you did not have before? 

Mr. KoMER. No, sir; I do not think we did. 

Mr. Ellis. Was the attorney-generars opinion published? 

Mr. KoMER. It is a part of the water commission's report. 

Mr. Ellis. Oh, yes. 

Mr. KoMKR. But the State by its legislature recognizes our right 
and confirms it, and upon the strength and faith of that legislation, as 
well as our common law rights, we have entered into contracts with 



1 



PRESERVATION OF NIAGARA FALLS. 69 

various companies and individuals involving the expenditure of a great 
deal of money and we desire to fulfill those contracts, and our lessees 
desire to f ultill contracts which they in turn have made upon the faith 
of our contracts, and if this bill now under consideration passes it 
will upset and destroy and embarrass people up there more than can be 
stated just now. When we talk about destruction and devastation, 
anything being done at Niagara does not bear any comparison with 
what this bill would create. 

Mr. Alexander. You claim that you have the right to use 9,500 
cubic feet? 

Mr. RoMER. Yes, sir. 

The Chairman. What are you using now? 

Mr. RoMER. Four thousand feet. But we have works under con- 
struction which will require more. I have photographs of some of 
the works here. 

The Chairman. Pardon me, before you leave that; does not this 
commission recommend that you be granted the right to use that 9,500 
cubic feet? 

Mr. RoMER. Yes, it does, sir; but your bill does not carry that 
reconnuendation. It says we shall use only what we are using now, 
and that would cause a loss to us of $2,000,000, and besides raise great 
trouble with us on contracts extending over thirty years. For 
instance, the Pittsburg Reduction Company, manufacturing aluminum, 
has lately entered into a contract with us by which we are to furnish 
them a very large quantity of power, and that is to be furnished them 
as soon as they can get a new power house completed, which is now 
under construction. 

We have entered into other contracts; for instance, one with the 
1. T. Morris (!!ompany for the construction of turbine wheels, involv- 
ing $120,000, and that is likely to be increased to a much larger sum; 
and the contracts are let, and they are engaged in preparing the 
wheels. The Pittsburg Reduction Company, acting upon our lease, 
which was executed two or three months ago, have entered into con- 
tracts for the purpose of supplying aluminium bars, and they have 
drawn contracts for the manufacture in their own plant of aluminium, 
which they tell us will cost over a million dollars, and they have let 
their contracts for generators, and all that sort of thing. 

Mr. Lawrence. Mr. Dudley, I think, this morning made a very 
admirable statement of the situation when he said that the people of 
this countr}' and the people of Canada want the commercial value of 
Niagara Falls to be utilized so far as it can be without marring the 
scenic beauty of the Falls. 

Mr. RoMER. Yes, sir; certainly. 

Mr. Lawrence (continuing). And what this committee are endeav- 
oring to ascertain is just what that point is to which such utilization 
cai^ be carried. What is your view as to that point? To what point 
can the commercial use of the water be carried without injuring the 
beauty of the Falls? 

The Chairman. I will say to you, and to any other gentleman who 
is heard here, that this point is of most vital importance and interest. 
You all combine in saying that it would be a shame to destroy the 
scenic beauty of Niagara Falls. 

Mr. Romer. We do not want to do that. 



70 PRESERVATION OF NIAGARA FALLS. 

The Chairman. Wc would be consentiiii^- to a wrong if we were to 
consent to that. On the other hand, you are all insisting- upon using 
very considerable amounts of power, both from this side and from 
the Canadian side. 

Mr. Ko:mkr. Yes, sir. 

The Cii AIRMAN. Now, in order to make that position consistent, it 
seems to me anyone who argues for tlie use of powei- should seek to 
throw all possibh' liglit on the (luestion of just w4iat is the point up to 
which power can be used without injuring the scenic excellence of the 
cataract. 

Mr. Ko:mer. Any light of information or data which we can furnish 
either to the connnittoe or anyone else we are entirely willing to give. 
The water commission called upon us for information, and we fur- 
nished it. 

1 have here a photograph that may give you some light upon the 
subject. 1 do not know whether you can see it from where you sit. 
Mr. Chairman, or not, but here on the lower bank is the power house 
[presenting photograph to the committee]. 

Mr. Komer. You see down here there are some overflows. They 
look larger in the photograph than they reall}^ are. This lower power 
house was constructed eight or ten years ago. When was that con- 
structed, Mr. Mathews^ 

Mr. Mathews. In 1897. 

Mr. Romer. There is being developed there 30,000 horsepower, and 
the power is taken down through three penstocks that you see extend- 
ing over the bank. One of those is 8 feet in diameter and one is 11 
feet in diameter. They furnish sufficient water to generate 30,000 
horsepower, and that is discharged into the river right here [indicat- 
ing]. You can see that that amount of water sufficient to generate 
30,000 horsepower amounts to nothing. It is hardly perceptible. 

The Chair3l\n. Of course .your development of power is at the 
outlet of the river. The channel to the outlet is on the level, practi- 
cally ? 

Mr. Romer. There is a little slope of 3 or 4 feet. 

The Chaiuman. But the real development of 3'our power and your 
equipment is at the. outlet? 

Mr. Romer. I understand that that is where our head is measured 
from. 

Mr. Lawrence. What is your opinion as to the amount of water 
that can be diverted without impairing the beauty of the Falls? 

Mr. Romer. That is a(|uestion for the engineers rather than for me. 

Mr. Lawrence. 1 expect that you have given it a good deal of 
thought, though. 

Mr. Romer. We have given it a great deal of thought. Mr. Cooper 
said that it was 40 per cent. It struck me while he was saying that, 
that 40 per cent is a little high. I would not undertake to say about 
that. Mr. Harper is our engineer. AYhat do 3^ou say, Mr. Harper? 

Mr. Harper. 1 believe that the abstraction of water could be made 
33 per cent from the Canadian Falls, and 20 per cent from the Ameri- 
can Falls, without gi-eatiy destroying the scenic beauty. 

Mr. Lawrence. How nuich would that amount to, put in cul)ic feet — 
the total? 

Mr. Romer. That would amount to something slightly in excess of 



PRESERVATION OF NIAGARA FALLS. 71 

the amount stated on page 9 of this waterways commission report, or 
in tlie neighborhood of 70,000 cul)ic feet- 
Mr. Humphreys. You say without destroying the beauty of the 
Falls? 

Mr. Lawrence. You did not mean to make it as strong as that, did 
you? 

Mr, Harper. I meant without seriously affecting it. 

Mr. Lawrence. This would make it 70,000 cubic feet per second ? 

Mr. Harper. Yes, sir. 

The Chairman. Seventy thousand cubic feet per second? 

Mr. Harper. Y^es, sir. 

The Chairman. You make a distinction between the diversion on 
the Canadian side and that on the American side? 

Mr. Harper. Yes, sir. 

The Chairman. It might be well, Mr. Romer, to interrupt your 
statement here and allow Mr. Harper to continue on this matter. 

Mr. Romer. Ver}^ well. 

STATEMENT 0? ME. JOHN L. HARPER, ENGINEER, NIAGARA 
FAILS HYDRAULIC POV/ER AND MANUFACTURING COM- 
PANY. 

The Chairman. Have you considered this suggestion of Mr. Cooper 
to dredge an area 700 feet ])y 500 feet at a point above the American 
Falls, with a view to increasing the How on the American side? 

Mr. Harper. 1 listened to that statement and it is a feasible propo- 
sition. Such dredging off or deepening of the river bottom at that 
point would increase the flow over the American Falls, of course at 
the expense of the Canadian Falls. 

Mr. Jones. These percentages that you state might be taken out 
would appreciably detract from the beauty of the Falls? 

Mr. Harper. 1 believe that you can notice it at the very low points 
of water; that is, when the wind brings the water level down, but I do 
not believe that it would be noticed, nor do 1 believe that it would 
detract materialh^ from the beauty of the Falls. 

Mr. Jones. You believe that you could take off that much without 
any apprecia))le effect on the scenic ])eaiitv of the Falls? 

Mr. Harper. I do not believe that a man, not considering gauge 
marks and not seeing direct the edge of the Falls, would detect it at all. 

The Chairman. Have you taken into consideration that the level of 
the lakes in recent years has been higher than ordinary, in making- 
your estimates? 

Mr. Harper. The estimate that I used was the one taken from the 
Waterways Commission report, using the 222,000 cubic feet per second 
as an average. 

The Chairman. You base it on that? 

Mr. Harper. Yes, sir. 

Mr. Alexander. That is considering 222,000 cubic feet per second 
as the whole flow of Niagara? 

Mr. Harper. Y^es, sir; that was the basis. 

The Chairman. Suppose that you placed the minimum at the low 
stage at 180, 800 cubic feet per second. W hat would you say about that ? 

Mr. Harper. I believe that at one of the low-water points, where the 
wind blows the water down, you would notice it with that draft. But 
at one of these points where the wind lowers the lake, of course the 



72 PRESERVATION OF NIAGARA FALLS. 

diminution of the passao-e of water over the Falls is of such short dura- 
tion that it should not be considered to any great extent, as was shown 
b}'^ the print shown here by Mr. Romer. 

The Chaikman. The report is to the effect that at a very low stage 
the flow i>< 180,800 cubic feet, and the report says: 

For short periods in midwinter, or with prolonged adverse winds, it has sometimes 
been even less. 

That, I think, is the low-water stage of the normal fall, 180,800 cubic 
feet, without bein^ influenced by winds. 

Mr. Harper. I have been at the Falls only four years, and I could 
not judge of anything as low as that, because I have never seen it in a 
normal flow of the water. You see the points on the readings of these 
guagcs where there are the dips down [indicating on the chart], and 
you see that the}^ are of very short duration, only twenty-four hours. 

Mr. P^LLis. You used the expression "greatly destroy." That is 
either an unfortunate expression or a very significant one. Taking 
out that amount of water would not "greatly destroy" the Falls, 
would it? 

Mr. Harper. I should have said greatly deplete the effect. It 
would not and could not destro}^ because you could not destroy that 
effect by taking out 3 inches of a sheet of water which is between 3 
and 4 feet thick. 

Mr. Ellis. Would you think it would affect it appreciably? 

Mr. Harper. It could be detected by an engineer measuring it, Init 
I do not believe that it would be detected by a tourist, a layman, look- 
ing at the Falls from across the river. 

Mr. Sparkman. Do you believe that these stages of high water come 
on with great regularity? 

Mr. Harper. They are more apparent in the winter season. 

Mr. Romer. There is a tradition there that we have a high year 
ever}' seven years, and some old fisherman swore to it in court once. 
He said that he knew it was so. But I doubt it. It depends on the 
rainfall and the winds, and so on. 

Mr. Davidson. I would like to ask you what difference it would 
make on the American Falls if 20 per cent of the water was taken — 
what the difference would l)e in the depth of the Falls? 

Mr. Harper. In the neighborhood of 4 inches; between 3 and 4 
inches. 

Mr. Davidson. What do you call the depth of the American Falls? 

Mr. Harper. It is between 3 and 3i feet. 

Mr. Davidson. Twenty per cent of that would be 

Mr. Harper. It would be one-fffth of the depth of the water; not 
necessarily of the height going over. 

Mr. Davidson. When you take away one-fifth of the water 3'ou do 
not take away one-fifth of the volume of the depth? 

Mr. Harper. No, sir. 

Mr. Davidson. How do you figure that out? 

Mr. Harper. That is figured by the formuhe of flowing water over 
dams, which is constant, taking in the velocity and the height, and so 
forth. 

Mr. Alexander. Supposing that there goes over the crest of the 
dam 4 feet of water; if you were to take awa}'^ half of that water how 
deep would tlie flow be that goes over the crest? Would it be only 2 
feet, or would it be 3 feet, or what? 



PEESERVATION OF NIAGARA FALLS. 73 

Mr. Harper. Giving offhand judgment on it, without having figured 
it, I should judge that it would be between 2j and 3 feet. 

Mr. Alexander. That is, it 3^ou take 50 per cent of the Avater 
right out of the main stream, the flow as it goes over the (;rcst of the 
dam will be reduced not over 30 per cent^ If it was 4 feet deep 
before, it would be about 3 feet deep after you had taken half of the 
water? Is that it? 

Mr. Harper. Three feet or slightly less. My judgment on it is that 
it would be 2.8, or two-tenths less than 3 feet. Of course these 
figures are a mere judgment to a great extent, and not having bandied 
these formulas I can not produce the figures in my mind. 

The first foot up from the top of the edge of the dam does not carry 
much water. You have got to get up 3 or 4 feet before you get much 
water from it. 

STATEMENT OF JOHN L. ROMER, ESQ.— Continued. 

Mr. RoMER. Our rights to take this water have been the subject of 
considei'ation by the courts of our State, and 1 have here volume 70, 
reports of the appellate division of the supi'eme court of New York, 
wherein this subject was up, and Judge Childs wrote the opinion, and 
he says: 

This being so, it appears that the rehitor, as riparian owner, had the right to take 
waters from the Niagara River for manufacturing purposes, not interfering thereby 
with the navigaliihty of the stream, such right being in no sense in the nature of a 
franchise, but a corporeal hereditament, not depending either upon grant or prescrip- 
tion. This subject is fully discussed in chapter 6 of Gould on Waters (3d. ed.) at 
page 293, to which reference is made. And this view of the relator's rights is con- 
firmed by the act of 1896, above quoted, which in terms confirms and defines the 
riparian rights of the relator and is wholly inconsistent with the claim of the relator 
as to the nature thereof. 

In this case, that decision was taken on appeal to the appellate divi- 
sion and confirmed there, and went to the court of appeals and was 
again confirmed, so that I take it that is the law of the State — that we 
have the right to take this water. 

The Chairman. The points discussed here were not discussed at any 
considerable length. This is a question as to the taxing of the prop- 
erty, as to the nature of the property. 

Mr. RoMER. As to the nature of our right, whether it was a license 
or a right of property, and the courts held that it was a right of 
property. 

Mr. Davidson. And yet the legislature, in rei'ognizing and confirm- 
ing tlie right of property, limited your right to use your own propert}' ? 

Mr. RoMER. They did, and we do not make any particular comf^laint 
of it, because they allow us to take all that we can, anyhow. 

Mr. Davidson. The legislature was inconsistent, then, with itself? 

Mr. RoMER. Y^'es, sir; but as long as they did not hurt us any, we 
do not complain. 

Mr. Bishop. You would not say that the General Government has 
not the power to legislate and take away the rights that you already 
have? 

Mr. RoMER. That depends altogether on the reasons for taking it. 
You have not any right to take our property any more than the State 
of New York has. 

Mr. Bishop. No. 



74 PRESERVATION OF NIxVGARA FALLS. 

Mr. RoMER. But 3'ou can regulate what we do there in the way of 
regulation of commerce. Your rights are limited to that. 

Mr. Mathews reminds me of something that I had forgotten. The 
State of New York is itself a riparian owner on the banks of the 
Niagara River, and its land lies below our land. The State might 
claim that as a riparian owner we were infringing on their rights. 
But there the State would not act in its sovereign capacity, but as a 
property owner. As a property owner the State acknowledges our 
right to take the water, and so they can not complain on that account, 
to the full extent of the water which can be drawn through that canal. 

I suppose that you are familiar with this case in 146 United States, 
page. 435. Mr. Justice Field delivered this opinion, in which it is 
said: 

It is the settled law of this country that the ownership and dominion and sov- 
ereignty over lands covered by tide waters within the limits of the several States 
belong to the respective States within which they are found, with the consetjuent 
right to use or dispose of any portion thereof when that can be done without sub- 
stantial impairment of the interests of the pulilic in the waters, and subject always 
to the paramount right of Congress to control their navigation so far as may be 
necessary for the regulation of commerce between foreign nations and among the 
States. 

This recognizes the fact that the State has the right to dispose of 
these things, and Judge Field later on in the course of his opinion in 
this particular case says that the ownership of the bed of the stream 
carries with it the ownership of the water that flows over it. In this 
connection I want to call your attention to the fact that the State of 
New York has conveyed to us, not as a gift, but as a purchase, and 
taking our money in consideration of the transfer, a portion of the 
bed of the stream of Niagara River constituting about 9 acres, lying 
out in the river just in front of the inlet. We own that land. The 
State has conveyed it to us. 

Mr. Davidson. Did you not own it as riparian owner? 

Mr. RoiNiER. No, sir; our right terminated at the high-water mark, 
and with the right to build docks out as an ordinary riparian owner 
does. But in addition to that, they have now transferred to us this 9 
acres of the bed of the stream. 

The Chairman. It might be well to explain this. The law in the 
State of New York is that the water in a navigable stream and the bed 
of the stream both belong to the State. 

Mr. RoMER. That is what they claim, yes, sir; and that is the deci- 
sion of the Supreme Court of the United States, that the title of the 
land under water belongs to the State. Now, the State has deeded to 
us this particular part of the bed of the river by purchase and sale, 
and we have paid for it, and we own it now. 

Chief Justice Taney, in 16 Peters, page 410, says: 

When the Revolution took place the people of each State became themselves sov- 
ereign, and in that character hold the absolute right to all their navigable waters, 
and the soils under them, for their common use, subject only to the rights since 
surrendered by the Constitution to the General Government. 

And the rights surrendered bj^ the Constitution to the General Gov- 
ernment are: 

To regulate commerce with foreign nations and among the several States, and with 
the Indian tribes. 

The State of New York, in the exercise of its powers, has declared 
and continued our conmion law right to take this water, and we think, 



1 



PEESEEVATION OF NIAGARA FALLS. 75 

therefore, we are not pirates,^ we are not robbers, we are not eng-aged 
in pouchino- upon the Governniont domain, but we are doinj^ what we 
have a right to do, and that right is a property right and the welfare 
of families, and I might say almost a community is dependent on it, 
and we do not want it interfered with by Cong-ress, and while Con- 
gress in its cai)acity as sovereign has the right to regulate commerce 
and so to deal with navigable waters in that way, so far as the interests 
of commerce ma}^ require, I do not think that Congress ought to 
delegate that right to any one ofKcer of the Government, no matter 
how wise and good he may be. I think that is a power that should be 
entertained by Congress to be exercised by its own wisdom, and not 
delegated to an official. 

The Chairman. The question of policy has been very much dis- 
cussed here. I know several years ago the power was given to the 
Secretar}^ of War to pass upon the plans for bridges in certain places, 
to make a determination of what were obstructions in navigable 
streams, to demand when bridges are olxstructions to navigation that 
changes should be made in them. That case has been before the lower 
courts, and went to the Supreme Court once. The argument for 
giving that power to the Secretary of War is that there is so much 
detail involved that Congress should be relieved from giving direct 
attention to all these cases. 

Mr. RoMER. That it should be given to him as a matter of conven- 
ience ? 

The Chairman. Yes; almost as a matter of necessity. 

Mr. RoMER. But here you are dealing with the rights of people as 
to whether the}' shall or shall not use them, and 1 think that is some- 
thing that Congress itself should determine. 

The Chairman. It is ditlerent in kind. This power given to the 
Secretary of War was to say to a corporation having a bridge across a 
navigable stream ""You must change that," "You must put in a draw," 
or " You must do this or that." It very materialh' affects the property. 

There is one other (juestion which, perhaps, you were intending to 
speak of in tmy event, which members of the committee have been 
considering lately, and that is the right of Congress to exercise con- 
trol over the nomiavigable portions of a navigable stream. This is a 
case of that kind. The Niagara River is navigable for over IT miles 
after leaving Lake Erie, and I do not know how many miles in the 
lower portion. It is also navigable just below the falls for a short 
distance. What have you to say about that? 

Mr. RoMER. I do not think Congress has any power or jurisdiction 
to interfere with the use of those waters at a point in the stream 
where it does not inure or pertain to the benefit of commerce or navi- 
gation. Your power is limited by the Constitution, as I read it, to 
just that point. 

Here we speak of the beauty and the grandeur of the Falls. That 
is a subject that does not pertain to Congress, and Congress has nothing 
to do with it. The State of New York might exercise that privilege 
if Congress could. 

The Chairman. Then you deny absolutely that Congress has any- 
thing to say about it? 

Mr. Romer. It has not for that purpose, no, sir; that is my judgment. 

Mr. Bishop. Would it make any difference whether it was an inter- 
national stream? 



76 PRESERVATION OF NIAGARA FALLS. 

Mr. RoMER. No, siv; T think not. The ocean is an international 
body of water. 

The Chairman. Here is another thing. Can Ave quite sever a river, 
and sever out portions where navigation is not possible, and saj^ that 
one portion is not subject to the control of Congress, while the remain- 
ing portion where a boat may run is under the control of Congress? 
Is not the whole river to l)e taken as an entirety? 

Mr. RoMER. Theoretically 1 think that is so. In a case where the 
State of New York took some property for the Niagara Reservation 
by eminent domain, that question was up, and they produced authori- 
ties showing that a stream was navigal)le notwithstanding that it was 
a fact that there might be a fall or rapids making places where boats 
could not go; that that did not render it a nonnavigable stream. 

The Chairman. That is in 37th Hun., or 44th Supreme Court 
Reports ? 

Mr. RoMER. I think that is the case. But as a practical question 
that stream is not navigable at this point, and never will be and can 
not be. 

There is a case known as the Speedway case in New York, which 
bears on this. In that case the legislature of New York art;tempted to 
authorize and did authorize the city of New York to construct a speed- 
wa}^ along the Harlem River for the benefit and pleasure of people 
who owned fast horses and nice carriages, and they went to work and 
constructed the speed wav, taking so much of the property on the shore 
as was necessary by eminent domain. 

The commissioners refused to allow to some gentleman his compen- 
sation for his riparian rights. He owned 2,500 feet along that stream 
bounded by the high-water mark. They said: "No; we will not 
allow 3'ou any damages, because it is within the power of the State to 
use that." Judge Werner, writing the opinion of the court of appeals 
(and it is a very instructive opinion) at page 144 of the 168th New York, 
says: 

The l)asis of the theory upon which the trusteeship of the State in our tideways 
and tidewaters is fouiKied seems to bethat there are certain rights of navigation and 
commerce by water which are common to all and therefore paramount to the rights 
of individuals. 

***** -s -X 

If the State may use the waterways for any purpose whatsoever, then it is no 
longer a trustee, but an irresponsible autocrat. If it may erect upon our tideways or 
tide waters any kind of structure that may be suggested by the whim or caprice of 
those who happen to be in power, it will lie possible to destroy navigation and com- 
merce by the very means designed for their preservation and improvement. 

******* 

If the trusteeship of the State in the tideway exists only for the purposes above 
enumerated, it would seem to follow that when, in the exercise of its general right 
of eminent (lomain, the State apjiropriatcs tiie tide water to uses inconsistent with the 
trust upon which it is held — that is, to some use not for the benefit of navigation — 
compensation should be made to the riparian proprietx)r whose rights have been 
abridged or taken away. Any other conclusion would necessarily admit the arbi- 
trary and unlimited powers of the State over its tideways and tide waters, for any and 
every purpose, whether connected with the subject of navigation or not; and no such 
admission should find its way into our laws. 

The Chairman. This question does not go as far as that. That was 
a case in which there was an actual appropriation by the State for 
purposes of its own. 

Mr. Romer. Yes, sir; but it shows the power of the State. The 



PRESERVATION OF NIAGARA FALLS. 77 

power of the State itself is limited to taking this thing' for purposes 
of navigation. 

The Chairman. That was where the State was taking it and utilizing 
it for its own purposes? 

Mr. lioMER, Yes, sir; and they claimed that it was not liable to pay, 
hut the court of appeals held that that riparian ri^ht was a property 
right, and the State itself could not take it away excepting it should 
lie in the interests of commerce or navigation, and 1 say that the Gen- 
eral Government stands in that respect the same as the State does. 

The Chairman. Of course, the question is this, just how far does 
the jurisdiction of Congress extend over that stream? It has been 
ou)" understanding here that the jurisdiction of Congress was para- 
mount over the navigable streams. 

Mr. KoMER, Yes, sir; Congress could perhaps overrule the action 
of the State in regard to it. When Congress sees fit to exercise its 
right it has the prior right; but when the State exercises its right 
and Congress remains quiescent the action of the State prevails. 

The Chairman. There seems to have been no exercise of legislation 
pertaining to this company of 3'ours, except that act of the State of 
New York, to which you referred. 

Mr. RoMER. No, sir. 

The Chairman. No permit or anything of that kind was given ? 

Mr. Romer. We have had some negotiation with the War Depart- 
ment with reference to some cribs put in the river to save the inliow 
of ice into the canal, and we have erected them by consent. 

The Chairman. Those, however, were erected after you had opened 
3"our canal and the water was flowing out from it? 

Mr. Romer. Yes, sir; and in the winter we found that we were sub- 
ject to obstruction b}^ the inflow of ice, and in order to save embarrass- 
ment we erected some slips, and the General Government — the War 
Department — examined into the matter and stated that it was all right. 

The Chairman. Are there also some cribs about the intake of the 
Niagara Falls Power Company? 

Mr. Romer. I think within a year or two they have joined with our 
company to extend the line of cribs. 

The Chairman. Was that by a permit from the Secretary of War? 

Mr. Romer. Yes, sir; and permission has also been obtained from 
the State reservation at Niagara. 

Mr. Davidson. That permit of the War Department was upon the 
premises that it did not interfere with navigation ? 

Mr. Romer. Yes, sir; there is no navigation there, you know — no 
practical navigation. 

The Chairman. There is a possibility of navigation, however, down 
to Port Day? 

Mr. Romer. Yes, sir; down to Port Day. You can take a tug at 
Butfalo and go with safety, if the man in charge is a man of judgment 
and experience, and enter into our canal. 

Mr. Mathews. And if there is no break in the machinery? 

Mr. Romer. Yes, if there is no break in the machinery; but we are 
at the very lo*'est limit; the very lowest possible point of landing; 
and it is not as safe a proposition as it might be. I would not care to 
make it every day. 

Mr. Alexander. You are below Schlosser's dock? 

Mr. Romer. Yes, sir. 
p N F— 06 6 



78 PRESERVATION OE NIAGARA FALLS. 

jNTr. Ar,KXANi)ER. How much below? 

Air. UoMER. About a mile. 

Mr. I>EDE. When j^ou pass the dock you put on a life preserver? 

Mr. KoMER. Yes, sir; when you pass the dock \'ou put on a life 
preserver and say j^our pra3'ers. A sensible man would not go below 
our intake. 

The Chairman. 'Is there anything further? 

Mr. KoMER. 1 want to lodge in your minds the fact that not only 
did the committee of the constitutional convention report that the 
water which we might draw through our canal, combined with the 
water which the Niagara Falls Power Company might take, would not 
do any appreciable injury to the Falls, but the waterways commission, 
whicli has made a study of this su))ject, recommends to the Congress 
or to the President or somebody that we be allowed to draw 9,500 
cubic feet per second, and we want to do that. We have expended a 
large amount of money, and I want to show you this. Here is a pho- 
tograph of one of the gatehouses. That shows actual work performed 
in the construction for the enlargement of our works [exhibiting 
photograph]. 

We have spent a good deal of money in enlarging the canal and 
getting a new power plant in condition for operation. It will be lost 
entirely and worse than lost if this bill passes in its present form, and 
if there must be legislation here we ask that there be amendments so 
that we may be permitted to draw, in accord with the recommenda- 
tions of the waterways commission, this 9.500 feet required and nec- 
essary to meet the demands under the leases and contracts that we 
have already made, and to justify the expenditures already made. 

Mr. Lawrence. You would like to have that sp'ccitied in the bill? 

Mr. Komer. Yes, sir. 

Mr. Lawrence. If we report a bill, what you ask is that we specify 
in that bill the amount of water that your corporation can take? 

Mr. RoMER. Nine thousand live hundred feet a second; yes, sir. 
And now there is this further suggestion that I want to make. I do not 
feel that it is just to American enterprise and American industry and 
American capital that we on this side of the river should be restricted 
in the use of the water in the river while there is no restriction on the 
Canadian side, and I think that the legislation here by Congress at this 
time is premature. And it would be far better to save this thing by 
a treaty between the two nations, so that the draft on the Canadian 
side would be regulated at the same time as the draft on this side is 
regulated, and better results can be obtained in that way than by this 
action here. 

The Chairman. It has been considered pretty carefully. This seems 
to be the consideration. There are a number of concerns going on to 
develop water power. The treaty is not the matter of a day. In 
June, 1902, we passed in the river and harbor bill a provision for the 
creation of a waterways commission to take up this whole subject of 
the waters along the Great Lakes in connection with members to be 
appointed from Canada. That conmiission could not even begin work 
until, perhaps. May, 1905, within one month of three years after this 
provision; and you will note that this bill is temporary in its nature — 
it is only to last for three years. 

In view of the numerous demands made for power there and the 
development that is going ou every week, persons being ready to open 



PEESERVATION OF NIAGARA FALLS. 79 

up and add to the diversion almost any da}^, what do you say, Mr. 
Kouier, as to the desirability of passino- a temporary measure-^that is 
all this is — to last until the whole ground can be thoroughly considered 
and arrangements can be made to secure to enterprise that amount of 
power which can be given to it without unduly depleting the Falls, and 
at the same time preserve the Falls? 

Mr. RoMER. I would say amen to that if you did not curtail the 
interests and rights of the people wiio are there engaged in business 
now. 

Mr Bishop. You would not be in favor of granting an}-- further 
rights ? 

Mr. KoMER. In view of all the discussion that has been going on 
over a series of years, I do not think I would. 

The Chairman. Here is the electric company coming in and claim- 
ing that they have an unlimited right. 

Mr. RoMER. I do not want to be understood as advocating a monop- 
oly. We are not here for that purpose; but we are here representing 
these interests and these rights. 

The Chairman. You were there before the Niagara Falls Power 
Company? 

Mr. RoMER. Yes; and a great many 5^ears ago had demonstrated 
the practica))ility of the use of this water in great volume and under 
high heads. It was the fact of the use of this water in this way in 
these flouring mills that drew the attention of these people to these 
falls. 

Now, I guess there have been a number of companies organized and 
chartered, and, by the way, the legislature of New York has introduced 
bills, I do not know whether they have been passed or not, for repeal- 
ing a great many of those charters. 

The Chairman. Are all the charters containing grants and fran- 
chises set forth in this report of the Waterways Commission? Are 
there any others besides those set forth there? 

Mr. Romer. I do not know about that. 

The Chairman. It seems from this that the number incorporated is 
only six in addition to those who have already constructed works. 
That statement is on page 14 of the report of the Waterways Commis- 
sion. 

Mr, Romer. There has been no grant of the legislature of the State 
of New York since 1894. They did pass a bill giving the right of 
eminent domain, as it was stated this morning, but Governor Odell 
vetoed it. No eflective grant has been made since 1894. 

Mr. Davidson. Has there been an act of the legislature to the efl'ect 
that no future charters will be granted? 

Mr. Romer. There has been something of the sort introduced now, 
following, I think, the recommendation of the Waterways Commission. 

Mr. Davidson. Of course that is only expressive of the sentiment 
of the people. It does not mean anything. 

A Rystaxder. There is now pending in the legislature a bill for a 
constitutional amendment prohibiting any further granting of fran- 
chises to take water from the Niagara River. I think that has passed 
and is up to the governor, but I am not sure. 

Mr. Romer. Yes; that is true. 

The Chairman. That would be acted on next November? 

Mr. Romer. Yes, sir. 



80 PRESERVATION OF NIAGARA FALLS. 

Mr. Mathews. It has to be passed by the next leoi.slatiire, so that 
it would not reaeli the people until the fall of 19U8. 

Mr. Davidson. It has to be passed by two legislatures? 

Mr, Mathews. Yes; before it goes to the people. 

The Chairman. There is no tax imposed, as I undei'stand it; no pay- 
ment which must be made into the treasuiy of the State or count}^ for 
this use of power? 

Mr. RoMER. No, sir; except as it constitutes property which the 
assessors, as shown in this case here, are entitled to consider; and our 
assessments have been growing wonderfully for the last ten 3^ears up 
there. 

Mr. Elliss. Do they tax the franchise, the value of the charter, or 
the privilege that j'^ou have there? 

Mr. RoMER. Yes, sir. Kow, if the chairman pleases, we have 
nothing but what we would like to show you. In fact, we have the 
whole situation up there that we would be glad to show to you, and if 
I may do so with propriet}^, 1 would like to invite this committee or 
its chaii-man to visit Niagara Falls, or a subcommittee, and to look the 
ground over with your own eyes. We will show 3^ou all that you 
want to know, with the aid of the engineers, so that you can act with 
a greater degree of intelligence than from the briefs and statements 
that you hear here. 

The Chairman. We appreciate very highly the invitation. I should 
fanc}'^ we would want to go over these figures and reports of the engi- 
neers pretty carefully before taking any such action. It might be 
there would be something there which we could ascertain better fi'om 
a personal inspection. 

Mr. RoMER. We would be glad to take you there and return you 
to Washington and show 3'^ou all that is to be seen at Niagara. I want 
to have the privilege of having printed some facts in relation to this 
matter and submitting them at a little later day, possibly next Aveek. 

The Chairman. The sooner the better. I hoped we would finish 
the bulk of the hearings this week. 

Mr. RoMER. As soon as we get back to Buffalo I will put the print- 
ing machine in operation, and will hope to have this back hei'e by 
Monday or Tuesday, so that that may be considered in addition to the 
facts that I have stated in a somewhat incoherent fashion, perhaps, 
before 3^ou to-day. I am obliged to you for your consideration. 

(At 1:40 o'clock p. m., the committee adjourned.) 



Committee on Rivers and Harbors, 

House of Representatives, 

Washington, D. C.^ Thursday^ A2)ril 19, 1906. 

STATEMENT OF F. W. WHITEIDGE, ESQ., DIKECTOR OF NIAGARA 
FALLS POWER COMPANY. 

Mr. Wiiitridge. Mr. Chairman and gentlemen of the committee, I 
represent the Niagara Falls Power Com})any, and I suppose I ma}' con- 
sider myself entitled to special consideration this morning by reason 
of the fact that I have prepared fully the remarks which I desire to 
nifikc before the committee, but upon further consideration I have 



PRESERVATION OP NIAGARA FALLS. 81 

decided to cut it all out, and I am going to confine myself to an 
impromptu statement. 1 recognize that 3'ou gentlemen are acting in 
pursuance of your public duties, and I feel that I want to put the case 
before you simply and to ask your consideration in reference to the 
concession which has been given to the Niagara Falls Power Company. 

That company Avas the first which started to furnish power at 
Niagara Falls. We did not seek that franchise. We acquired it from 
others who held it. That we acquired in the ordinary course of busi- 
ness, and we proceeded to the development of the power. We have built 
two great power houses which are the wonders of the world, second 
only to the Falls themselves, and we have installed 20 dynamos and a 
quantity of turbines each with 5 horsepower, so that we are able to 
develop in the aggregate from 100,000 to 105,000 horsepower, and 
we are sujiplying 150 customers. We have expended something like 
$30,000,000, I do not mean in securities, but in good round gold dol- 
lars which have gone into the enterprise. In addition to that some 
seven or eight millions of other people's money have been invested to 
avail themselves of this power. 

The report upon which you are proceeding states that our expendi- 
ture has been only $6,000,000. I trust that all of the other recom- 
mendations are not as far out of the way as that one, because the 
amount we have invested is not $6,000,000 but $13,000,000. It is fur- 
ther stated by the International Waterways Commission that this com- 
pany probably thinks that it is inexpedient to undertake to avail 
ourselves of our additional rights. The Commission stated that we 
have the right to develop 200,000 horsepower, but having up to the 
present time only developed 100,000 horsepower, and having, as they 
sa}' they believe, no intention of doing anything more, that no harm 
will be done by taking that right from this company. I do not know 
what credence can be given to the gentleman who did not know the 
dirtercnce between $6,000,000 and $13,000,000. I do not think their 
views are very important. 

Mr. Lawrence. They said in the report that the investment is said 
by the management to be onlv $6,000,000. 

The Chairman. It is said that $7,000,000 or $8,000,000 was invested 
in other industries established on its lands. 

Mr. Whitridge. The fact is as I have stated it. I have been a direc- 
tor of this company from the beginning, and neither I nor any oflicer 
of the company, unless it be some local ofticer, knew that this Commis- 
sion was taking any testimony. No member of the Commission had 
appeared there to ask questions, and the fact is, as stated, that the 
amount of money which has been expended in building these two power 
houses, in building the canal, and the completion of the tunnel, and 
the cost of the turbines is about $13,000,000 and not $6,000,000. 

Mr. Lawrence. I want to call attention to the fact that the Com- 
mission did not giveitas their judgmentthattheamountwas $6,000,000, 
so that you do not impugn their judgment but their statement of facts. 

Mr. WniTRiD(;E. I do not impugn anybody. It is simply an inad- 
vertence and a mistake. What I do impugn is that they sa}^ that these 
people have no intention of proceeding. There is no foundation for 
any such belief, and I do not conceive how anj^body could have come 
to believe anything of that kind, because anybody who looks at the 
record of this company will find that the development to the extent 



82 PRESERVATION OP NIAGARA FALLS. 

that I have stated was in the mind of the management from the begin- 
ning. We built the intake canal of a sufficient capacity to provide 
water for I)()th tunnels. We bought the right of way for both tunnels. 
The second tunnel was as much a part of the undertaking as was the 
first tunnel. In all the literature which has been circulated the second 
tunnel has always been mentioned. 1 have here an article from a 
magazine which was published, in which this second tunnel appears as 
part of the scheme. 

Mr. Jones. I want to take up the question of the statement of the 
Commission as to the expenditure of this $6,000,000. You have had 
a manager of your company at Niagara Falls all the time. 

Mr. Whitridge. 1 always believe that there is ground for ever3^thing 
and that things need explanation. I understand that the Commission 
was there about the time of the death of our vice-president and that 
some subordinates must have appeared and given some misinformation 
in reference to the facts. 

Mr. Jones, Some one of your management has always been at 
Niagara Falls? 

Mr. Whitridge. This was a subordinate officer who appeared. 
That was b}^ reason of the death of the manager and the vice-president. 

Mr. Jones. He is the manager at that point now? 

Mr. Whitridge. He is not now. There is a man there now. 

Mr. Alexander. The president of this waterways commission, 
Colonel Ernst, is here and can explain that. 

Colonel Ernst. The information was obtained by a public hearing 
after due advertisement, of which notice was given to your company 
and the principal man of your company was present. 

Mr. Whitridge. Who was he? 

Colonel Ernst. I do not know his name; but 1 have his full name. 

Mr. Whitridge. 1 do not care who was present and I do not care 
what he said. The facts are not as they have been stated. Of course 
I understand that it is an error. There is no question ahout that. 

The Chairman. Have you carefully examined this statement in the 
report at the bottom of page 5 and top of page 6, in which it is stated 
that "the investment is stated by the managers to be over $6,000,000 
in the power plant and $7,000,000 or $8,000,000 in other industries 
established on its lands?" 

Mr. -Whitridge. Yes, sir. 

The Chair]\!an. Have there not been seven or eight million dollars 
in other industries established on the line? 

Mr. Whitridge. That is not what 1 meant. What I meant was that 
we expended all together on our power [)lant about $13,000,000 instead 
of $6,000,000, and that in addition to that seven or eight million dollars 
or some other number of millions have been expended by individuals. 

The Chaikman. (3utside of your company? 

Mr. Wiiitrid(3E. Outside of our company, and in addition to these 
$13,000,000 of which 1 speak. 

The Chairman. Still further in the report you will note that the 
object of this statement is to show not what has been ex|)end('d by out- 
side companies, but by your company. It is not stated that $6,000,000 
was the whole amount expended by j^our company, but seven or eight 
million dollars additional. 

Mr. WniTuiDGE. Then that is another error, because seven or eight 
million has not been expended by our company, as it is stated there. 



PRESERVATION OP NIAGARA FALLS. 83 

The oompan}^ as a corporation has not expended that amount of money 
in tiiat way. 

Mr. Lawrence. What is your position in this company? 

Mr. Whitridge. I am a director of the Niat^ara Falls Power Com-, 
pan}^ and I am its attorney. 

Mr. Lawrence. Did you have any knowledge of this public hear- 
ing to which Colonel Ernst referred? 

Mr. WiiiTiaiKiE. 1 never heard of it until two weeks ago, when this 
report came out, and then 1 found, as Colonel Ernst has stated, that it 
was attended by a subordinate officer of our company. 

The Chairman. 1 hardly think that the members of the Commission 
are to blame. The}^ gave ample notice. 

Mr. Whitridge. 1 do not blame them. 

The Chairman. Tliey gave two weeks' notice of a public hearing, 
and it would seem that 3"our officers thought they could appear and 
answer the inquiries. 

Mr. Whitridge. 1 do not blame them. This took place at an 
unfortunate time — when our manager and vice-president had just died. 
There was confusion for two or three weeks thereafter, and that public 
hearing was attended b}' two officers of the company, who made a 
statement, and the attorney of the company says it was submitted, but 
it does not bear out the other ones. 

Mr. Lawrence. I do not want to locate the blame. I want to 
know, as a matter of fact, if the otHcers had notice of the hearing, which 
you say they did not have. 

Mr. Whitridge. As a matter of fact, I say that some of the officers 
of our company were there. The officers did not go there until a few 
da3's ago, and I have been anxious to have the proper ones appear. 
1 want you to allow me to repeat my statement, because I do not want 
to have any misunderstanding, and I am sure that the Commission 
does not want an3^ This company has expended on its plant at 
Niagara Falls about $30,000,000, not in securities, but in good round 
gold dollars. In addition to that, there have been expended by people 
at the Falls who have availed themseves of the power seven or eight 
millions of dollars or some other number of millions of dollars. The 
statement of the Connuission, of which 1 think I have a right to com- 
plain, is that this company is not inclined to develop this additional 
100,000 horsepower, and that therefore no harm will be done if the right 
be revoked. 

Mr. Jones. Where is that in the report? 

Mr. Whitridge. That, in reference to the second 100,000 horse- 
power, is paragraph 30, page 3. 

Mr. Jones. They say '" We believe there is no present intention of 
doing so." 

Mr. Whitridge. This company from 1S02, or at an earlier date, 
certainly from that date, has had the intention of developing the 
second 100,000 horsepower, and the company later made an arrange- 
ment to that efiect. The whole financial plan is based on that supposi- 
tion. We have bought the right of way for that tunnel; we bought 
the portal for that tunnel; we have built the intake of the canal for 
that tunnel, which is, in fact, a part of the tunnel, because it takes the 
water for both tiinnols; we have bought 2,000 acres of land, giving us 
additional riparian rights from which to take water for industi-ies; and 
that second tunnel, and that right of wa}', and that land is all inserted 



B4 PRESERVATION OP NIAGARA FALLS. 

in the mortf^'age upon which we have raised most of our money in 1801 
and a supplementary mortgage in 1898. That is a part of the entire 
scheme. The second tunnel is as much an integral part as the iirst 
one. 

We have been the pioneers in this industry. Down to the time when 
we began with the development of this enormous electrical energy it 
had not been done anywhere else in the world, and it was not known 
how it could be done. Our men stayed for months in London con- 
ferring upon this scheme. The experiment and experience which we 
have derived were the foundation, 1 might say, of the electrical devel- 
opment the world over. In our efforts along this line we have done 
everything it was in our power to do for the care of the Falls. Our 
works are a mile and a quarter awa}^ from the Falls. The portal of 
the tunnel is at the water's surface below the Falls, so that any inter- 
ference with the scener}' is thereby avoided. We have done everything 
possible not to despoil the Falls. Instead of being the despoilers of the 
Falls we have been the conservators of the Falls. 

As to our mortgage, our position to-day is almost exactly like that 
of a man who would borrow money on a couple of houses. After one 
house was erected a gentleman might come along and say to him that 
the second house interfered with his vision and that it would have to 
be taken down. What elfoct would that have on the mortgage? It 
would have the etiect of invalidating the security. 

Moreover, the rights of this company are based on special statutes 
of the State of New York, which are accurately stated in the report of 
the commission. This is the first company which consented to any 
limitation at all. We were opposed to the reckless expenditure of 
power at Niagara Falls. We bought out one right and allowed it to 
expire. We bought another and held it for nine 3"ears, or until we 
were compelled to do something. Up to 1898 we had a right to take 
an unlimited amount of water. We consented to the limitation of 
200,000 horsepower instead of an unlimited amount. 

Mr. Alkxander. What year was that? 

Mr. Whitridge. That was in 1893. At that time the president and 
attorney was Mr. Andi'ew Greene, who opposed the act proposed, 
because he said it would be a contract with the State of New York 
and the Niagara Falls Power Company. He stated that it would limit 
us to 200,000 horsepower. In return we agreed to provide electricity 
for the reservation for all time. We stand upon the actual contract 
with the State of New York — that is, the act of the legislature giving 
us the right, or confirming the rights Avhich we had as riparian own- 
ers. We are the principal persons who have developed this power. 
We are the pioneers and the people of experience, and it seems to me 
a little short of ironical to say that if anything is to be done that we 
will be the losers; we, who are the main persons and almost the only 
persons to l)e disturbed. 

Therefore we think, in consideration of the legal question involved 
and in consideration of the engineering questions involved and any 
other questions, we have the right to ask you gentlemen to so amend 
that act as to give us the rights which the h^gislature of the State of 
New York gave us and not to withdraw it, and with a provision inserted, 
so far as we are concerned we will do everything to further the act if 
it only gives us what the State of New York gave us. That could be 
done in the first few lines of the act by inserting a [)iovision "except 



PRESERVATION OP NIAGARA PALLS. 85 

as authorized by the leo-islature and not heretofore repealed by the 
same.'" That is all we ask. 1 think you will find that that will be of 
some advantage, because it could then be said that the principal per- 
sons using the power are the persons who have expended the largest 
amounts of money; that we would accept heartily, provided that the 
vested right which we have been given is secure. 

1 venture to say that that is not an unusual request, and I think that 
no one — no business man — would say that 1 was asking anything more 
than appeared fair and reasonable. 

1 am not passing any reflections on the Commission. I believe that 
the statement made as to the expenditure is an error and a thing that 
might have occurred under the circumstances. I have something 
which 1 will submit in writing. 

The Chairman. We have one or two questions to ask you: First, 
how nuich per second are you using now, measured in cubic feet? 

Mr. Whitrtdge. We are generating 8,600 cubic feet per second. 

The Chairman. Can you give the measurement of the power? 

Mr. Whitridge. It is about 100,000 horsepower. 

The Chairman. You have another tunnel which you intend to con- 
struct by the use of which you will develop another 8,600 cubic feet? 

Mr. Whitridge. We have another tunnel by which .we will use 
another 8,600 feet. 

The Chairman. Making 17,200 cubic feet, which will create 200,000 
horsepower. 

Mr, Whitridge. Yes, sir. 

The Chairman. That is the limit fixed by the State of New York? 

Mr. Whitridge. That is the limit fixed by the act of the State of 
New York, and it was proposed by us and accepted in writing with the 
legislature of the State of New York, and it constitutes a contract with 
the State of New York. 

The Chairman. Where is that tunnel with reference to the canal 
and the works of the other companies? 

Mr. Whitrid(4E. The map would show it. The second tunnel is 
show n in the red line. 

The Chairman. Is the canal of the Niagara Falls Power Company 
above or below ? 

Mr. Whitridge. It is above. 

The Chairman. What permits, if any, have you received from the 
General Government, either by legislation or by licenses from the 
Secretary of War? 

Mr. Whitridge. We have, I believe, received several acts from 
the Engineer Department in reference to water, but I can not tell pre- 
cisely what they are. 

The C'hairman. The reason is that I asked for a list of all the per- 
luits and legislation pertaining to this subject, but 1 do not recall 
having seen your company included. 

Ml". Whitridge. I do not suppose any permits would have been 
asked for the use of the water from the Government, l)ecanse we take 
it that those water rights are ours as riparian owners, and on 2 
miles of the shore we have bought the riparian rights from the State 
of New York and from other abutting owners. 

The ('haiuman. Where is that 2 miles of frontage? It is not one 
body of land? 



86 PRESERVATION OP NIAGARA PALLS. 

Mr. Whitridge. Yes, practically; it runs from what is called the 
paper mill upshore for 2 miles. It is shown on the map. 

The Chairman. The red line is the proposed tunnel? 

Mr. Whitridge. Yes, sir, of which only the beo-inning is constructed. 

Mr. Davidson. You mean by the intake canal, the canal leading- to 
the mouth ? 

Mr. Whitridge. Yes, sir. 

Mr. Davidson. What are its dimensions? 

Mr, Whitridge. It is 75 feet wide at the river's end. 

Mr. Davidson. How deep is it^ 

Mr. Whitridge. It varies from 16 to 17 feet. 

Mr. Davidson. How far is it from the edge of the river to the 
tunnel? 

Mr. Whitridge. Al)out 800 feet. 

Mr. Davidson. So that the inlet to the canal is really the inlet for 
he tunnel? 

Mr. Whitridge. Yes; for l^oth tunnels. 

Mr. Davidsoist. There has been no work done on the last tunnel? 

Mr. Whitridge. Very little; but enough has been done to make 
connection with the intake canal. 

The Chairman. The intake canal would be some distance off? 

Mr. Whitridge. Yes. 

The Chairman. You own the rights for that tunnel? 

Mr. Whitridge. Yes; we bought the right of way for that, includ- 
ing the portal. 

The Chairman. WJiat is the fall of this tunnel in existence and the 
proposed fall in the oth -r tunnel? 

Mr. Whitridge. It is about 1 in 7. The actual fall is over the sur- 
face at the bottom of the intake canal and the surface of the river 
below the Falls. Colonel Ernst can tell that better than I can. 

Mr. Davidson. Do we understand that the present canal would be 
of sufficient dimensions to supply l)oth tunnels? 

Mr. Whitridge. Yes, sir; the engineers were ordered to build it, 
so we took their expert advice. 

Mr. Davidson. You say the width of it is al)out 7.*^ feet? 

Mr. Whitridge. Yes, sir. I do not know about those engineering 
questions. My information is gained only by what IJiave seen. 

Mr. Davidson. The intake canal is practically 75 feet wide and 16 
to 17 feet deep. 

Mr. Whitridge. I should say that it widens at the riv^er. It was 
built so as to accommodate these tunnels. I do not want to allow of 
any misunderstanding about its being a humbug as to the second tun- 
nel. It is a part of the scheme. It was all conceived at the same 
time and all the money was raised with that understanding. 

Mr. Jones. Do you know when work will be conuueuced on this 
second tunnel? 

Mr. Whitridge. It came near being commenced last year, but it 
was a question of a contract for power. The question of a contract 
for power seemed to make it necessary and the people could not make 
up their minds. The fact is that science is not marching with that 
rapidity and as much certainty as some engineers would lead us to 
suppose, and whether it is desii-al)le to spend $50,000 more is a ques 
tion. Railroad people do not know how they could use power. That 
is the next greatest use for power. 



PRESERVATION OF NIAGARA FALLS. 87 

Mr. Jones. It will be built when the demand for the use of power 
requires it. 

Mr. VVhitridge. Give us the demand for the power and it will be 
built in the shortest possible space of time. 

Mr. Davidson. The rig-ht of way was acquired when the first right 
of way was acquired? 

Mr. WiiiTRiDOE. Shortly after that — when the mortgage was made. 

The Chairman. I suppose \^ou have no special views to offer in 
regard to the amount of water that can be withdrawn from the river 
without materially injuring the beauty of the Falls? Have you con- 
sidered that subject? 

Mr, Whitridge, I have considered it for fourteen j^ears. I have 
talked with all the engineers about this business. 1 have read pretty 
much everything that has appeared about it. My belief is that there 
is a good deal of exaggeration as to the damage to the Falls and the 
likelihood of damage being caused b}^ taking out the water. It would 
be idle for me to address myself to that subject. I am a lawyer and 
.pretty well versed in most of the questions of the day, but I think 
that the first thing to find out is to tihd out what you don't know. I 
can not tell what is going to happen to the Falls. I think a great many 
of those who claim that they know do not know. I do not think it is 
desirable or protita))le to go into that. 

I suppose that if you want to preserve the Falls as one of the won- 
ders of the world and to abolish the industrial development which has 
grown up around it, the quickest and best course would be for the 
State of New York and Canada or the (reneral Grovcrnment of the 
United States and Canada to unite and destroy everything there in 
the way of industrial development and restore the surroundings to the 
conditions in which they were when the French missionaries iirst dis- 
covered them. I take it that the way to proceed is to condemn as you 
would with a park in the city of New York. That is, b}^ buying the 
land and the rights and destroj'ing everything. The way to pi'oceed 
is to buy out the people and pay them for their expenditures. That 
is a large question, and it is not proper to go into it here. It is not, 
perhaps, germane to this bill. 1 do not want to go into the realm of 
speculation. There is a great variety of opinion as to the effect of 
different things on the flow of water over the Falls. 

There have been times once or twice a year when we found very 
appreciable differences in the flow of water. The east wind makes a 
great diflerence. Some engineers have told us that in 1842 the Ameri- 
can Falls was absolutely bare on account of the east wind, which held 
back the water of the lake, but those are unimportant questions for 
the present. We want to stand upon our rights, which we have 
obtained from the State of New York and on which we have invested 
our money. That is all we ask. I hope that I have made myself 
clear to you, and, if not, I want you to give me a chance to do so. 
That contract is so clear and the rights secured are so certain that we 
will agree that your act ought to be so amended as to provide that 
this contract for this tunnel shall be secured to us as given to us by 
the State of New York. 

The Chairman. Do 3"ou feel like giving us an estimate of how much 
water might be withdrawn without injury to the Falls, or do you 
regard it as conjectural? 



88 PRESEKVATTON OF NIAGARA FALLS. 

Mr. Whitridge. It is entirely conjectural. I have a telegram from 
our manager. I do not understand it, and I am sure 3^ou would not. 
There is no use in my going into those things. I might say something 
that was not true. 1 want to be particular about things and confine 
myself to the things which I know. I want to say while Colonel P^rnst 
is here that an3'body can get expert testimony to prove anything he 
starts out to prove. Any lawyer knows that. 

Mr. Lawrence. From your reading and your consideration of the 
subject, 3^ou are of the opinion that the difficulty which this committee 
is going to have is the difficulty of determining the amount of the flow 
of water over the Falls that can be utilized without its impairing the 
scenic beauty. Do you not think that that is going to be our difficulty ? 

Mr. Whitridge. No; I do not think so. 

Mr. Lawrence. What is your judgment about that? 

Mr. Whitridge. I would leave it as it is now. 

Mr. Lawrence. Would you leave it as it is as to the present amount 
of power now authorized? 

Mr. Whitridge. Yes, sir. That is what I ask you to do. I do not 
see very well how, without going into a jungle of scientific mixture, 
you can do anything else. It requires the prescience of an archangel 
to find a way to clear the webs of legal and engineering questions if 
you undertake to do anything except take the facts as they are. 

Mr. Davidson. Then j'our solution would be to give those who are 
there all the power they want and not let anybody else have any ? 

Mr. Whitridge. Not all they want. 1 do not represent anybody 
else. There are a great many people, and I have no doul)t each one 
will take care of himself; but I do not want to say an3'thing derogatory 
of an3'one else. 

Mr. Jones. What amount do you think you are legall3' entitled to? 

Mr. Whitridge. I know I am entitled to it. The act of the legis- 
lature of New York says I am entitled to it. 

Mr. Davidson. Without reference to the rights of the General 
Government, which is superior to the rights of the State of New York? 

Mr. Whitridge. We have got a whole lot of books on that sub- 
ject. They never were in existence before we began to exercise all 
those rights. 

The Chairman. All what rights ? 

Mr. Whitridge. The rights the gentleman was talking about, the 
rights of the General Government as superior to the rights of the State 
of New York. 

The Chairman. What is your opinion in regard to that — whether 
the Federal Government or the government of the State of New York 
has the exclusive control there? 

Mr. Whitridge. I should say that the State right was undeniable. 

The Chairman. We would like to have full copies of any permits 
given b3^ the Federal Government to your company. 

Mr. Whitridge. We shall be glad to file copies of anything which 
we have. I do not think that there are any permits given by the War 
Department except permits for cribs or things which would interfere 
with })ossible navigation. There are several such, but I can not see 
why any other permits should be given, ))ecause the State of New 
York has always been understood to be the owner of the property as 
well as the possessor of the sovereignty. 

The Chairman. In what 3'ear was that act passed, 189G? 



PRESEKVATION OF NIAGARA FALLS. oU 

Mr. Whitridge. Which act. 

The Chairman. The act under which you ckiim your rights. 

Mr. Whitridge. In 1892. 

The Chairman. Is there not a hiter act? 

Mr. Whitridge. There was some act passed in 1898. There was an 
act passed in 1892, and there were some acts passed in 1893 confirmatory 
thereof, and I also think there was an extension of the right to issue 
stock or to change the proposition from stock to bonds. 

Mr, Bede, Tiie contract with the legislature of the State of New 
York was not in 1898. 

Mr. Whitridge. The contract with the legislature is contained in 
the act ptissed May 12, 1892. 

The Chairman. That is the principal act? 

Mr. Whitridge. That is the act which, for the first time in the 
history of the world, limited the use of water by anybody who had 
theretofore obtained the right to use it. That limitation was proposed 
and accepted by us. 

The Chairman. Is there a limit to the life of your franchise? 

Mr. Whitridge. Yes; fifty years. 

The Chairman. What do you understand is to be done with it after 
that? 

Mr. Whitridge. 1 shall not be here then. 

The Chairman. Have you not given some consideration to that 
subject? 

Mr. Whitridge. I have considered an enormous number of subjects 
and I might take up your time profitably with them, but 1 do not think 
that you expect me to enter into a discussion of esthetic questions. 

The Chairman. Would not that act terminate the right? 

Mr. Whitridge. I think so. 

The Chairman. There is no other question except that. 

Mr. Whitridge. I should say if the right to use water depends on 
the act of the legislature, and not upon the right as a riparian owner, 
such act would expire with the rights conferred thereby. Any legis- 
lation granted expires at the time fixed in the act. 

The Chairman. Is there an}' other gentleman here representing the 
Niagara Falls Power Company? 

Mr. Whitridge. No, sir; ^11 we ask is that you give us what the 
State of New York has given us. I will submit some memoranda. 

The Chairman. The next gentleman is to speak for Bufi'alo. 

STATEMENT OF W. H. GRATWICK, ESQ., PRESIDENT OF THE 
BUFFALO CHAMBER OF COMMERCE. 

Mr. Gratwick. Mr. Chairman and gentlemen of the committee, I 
have the honor to represent the Chamber of Commerce of the city of 
Bufi'alo. The city of Bufi'alo is very much concerned about the pro- 
posed legislation, and it is chiefly for the city of Bufi'alo that I want 
to speak this morning. Allow me to say, in the first place, that you 
are doubtless aware that the State of New York is a unit on the propo- 
sition of the preservation of Niagara Falls. I do not think there would 
be a dissenting voice in the State of New York on that proposition. 
Probably the most interested community in the State of New York 
would be the city of Bufi'alo, because of the presence of Niagara Falls 
at our doors. It means a great deal to us. It brings us thousands of 
visitors every year, and it brings us additional trade and prosperity. 



90 PRESERVATION OF NIAGARA FALLS. 

In addition to this it is our one main pleasure resort, and its prox- 
imity makes it available to the laboiing- people, the clerk and the busi- 
ness man. Whenever a man has an hour or two off he can get on a 
"trolley" and go down to the Falls. It is available every day in the 
year. In other words, if the preservation of Niagara Falls presents 
itself to the rest of the country in an altruistic phase, to Buffalo it is 
a vital and important matter, and I will say, therefore, that if the city 
of Buffalo felt that there was the least danger of a serious detriment 
orimpairment of the beauty of the Falls, that the people of that city as 
a whole and the chamber of commerce as a body would be the ffrst to 
stand behind you in your efforts to preserve them; but I do not think 
there is any danger. There has been nothing to indicate it up to the 
present time. 

It is a matter of history that in 1842 the American Falls were dry, 
and some twelve or fff teen years ago it is said that some people walked 
across the river. That is a question of the prevalance of an east wind. 
I understand that it is practically a matter of history. An authentic 
account is given in history back in 1840 when the American side was 
dry, and it is a thing which I think can be authenticated b}'^ reference 
to the papers of Buffalo when people walked across the American side. 
That is not a new situation. It is well known that a strong wind will 
affect the navigation of the entire river and that it will lower the water 
as much as 18 inches. It is the same way at the Falls. A strong east 
wind will create a noticeable and perceptible difference in the flow of 
water. 

The Chairman. We take a peculiar interest in listening to you 
because you represent this locality. I do not think, however, that you 
wish to be understood as saying that the Falls should be reduced to a 
condition such as is produced by the prevalence of an east wind, when 
a person can walk across the American Falls. 

Mr. Gratwick. I think it is impossible to make an accurate state- 
ment of that. It depends on the time when you happen to go there. 
I could take this conunittee on days when you would say that the Falls 
were ruined, and again I could take you there Avhen you would not 
notice the difference in the amount of water going over the Falls. I 
do not think that so far as the amount of water taken out is concerned 
that it has made any appreciable difference. You must take the 
average. 

The Chairman. I think we must consider the average. 

Mr. Gratwick. I do not think there has been an}^ effect produced. 

The Chairman. With the withdrawals now being made or pro- 
posed 

Mr. Gratwick. I have never seen any myself, and I never saw any- 
body in whom I had any contidence who would say that an}" effect had 
been made. 

The Chairman. What do you understand is the amount that is now 
being withdrawn? 

Mr. Gratwick. I understand in a general way that the Niagara Power 
Company is generating approximately 100,000 horsepower. I do not 
think that they are generating as much as they might. On the Canadian 
side they have rights, the rights in all amounting to some 500,000 
horsepower, counting the amount that has been granted on both sides 
of the river. 



PEESEKVATION OF NIAGAKA FALLS. 91 

The Chairman. What practical suggestion have you to make to this 
committee if things go to the full extent that the different parties on 
both sides of the river are seeking to create by the diversion of the 
water? 

Mr. Gratwick. You will find that there are companies holding- 
charters who have done nothing whatever to make those charters good. 
They hold charters, but they have made no expenditure of money. I 
should think, as a citizen of BuUalo, that it would be perfectly fair to 
ask those companies who have such rights that they be withdrawn, 
especially if they have spent no money. 

Mr, Bjede. I thought that you stated that these dormant charters 
had been repealed. 

Mr. Gratwick. No, sir; the bills are pending to repeal some four 
or live different charters which have not been exercised; but, speak- 
ing as a citizen, 1 think that the property rights which have been 
given in good faith should not be interfered with in any drastic way. 
In some cases millions of dollars have been expended. 

Mr. Humphreys. I understand that you agree with the ideas of the 
Secretary of War as to those permits, where they have been given to 
individuals or corporations and where they are now producing power? 

Mr. Gratwick. I am not a lawyer. I suppose that I should be 
familiar with the phraseology of the bill. But the point that I want 
to make is that it would hardly seem to me right to curtail any of the 
rights of concerns that are acting in good faith. I do not want to 
speak of the matter from the standpoint of the power companies. In 
Buffalo we are interested in the supply of electricit^^ 

Mr. Lawrence. You represent the Chamber of Commerce? 

Mr. Gratwick. I do. 

Mr. Lawrence. Has the Chamber of Commerce taken any official 
action with reference to this dispute in that matter? 

Mr. Gratwick. Yes, sir. We had a meeting on last Saturday and 
we adopted strong resolutions. 

Mr. Lawrence. Have vou a copy of those resolutions ?** 

Mr. Gratwick. I regret to say that I have not. 1 also represent 
the city of Buffalo, and I have resolutions passed by that city. Buf- 
falo is vitally interested in getting electric power. During the life of 
the Niagara Power Company, Buffalo has looked to that company for 
her supply of electricity. The lighting of the city is in the hands of 
this concern. Buffalo is interested in allowing the Canadian power 
companies to make power. It is a vital matter, and we think that 
competition is the life of trade. 

We can not get competition except through the Canadian power 
companies. Only recently that competition has made itself felt. The 
Buffalo Power Company have sold to the city light at $56, whereas the 
former price was $75. And to private consumers they now charge 9 
cents per kilowatt, as against 12 cents formerly. There is a tangible 
result so far as the city of Buffalo is concerned by allowing the 
Canadian Power Company to come in. This is an important matter, 
and I think it is an important matter for the whole country. A 
number years ago — I speak as a lumberman — the lower peninsula of 
Michigan was doing a tremendous business in its saw mills. Thousands 
of men were employed and millions of dollars were paid in wages. 
The timber supply of Michigan was cut off', and it is now brought 

»See copy of resolutions ?it close of Thursday's be^^nug. 



92 PRESERVATION OF NIAGARA FALLS. 

over from Georgian Bay in Canada. At that time we had a duty on 
Canadian hmiber, but the Canadians have taken that oti'. And now 
they charj^e a duty. They put an export duty on their lumber cut 
from the Crown hinds. 

. The effect of that has been that the mills of this country have moved 
to Canada. I was greatl}^ surprised to learn from Mr. Schwab of the 
industries that have gone to locate in Canada with American capital 
and emplojang skilled American labor to the extent of almost 5(),0»)0 
men. That is purely the result of the retaliatory policy adopted both 
by this country and by Canada. At one time the Canadians were pretty 
much at the mercy of our manufacturers, but they have put a duty on 
Canadian floods, and the conditions have changed. Canada has the raw 
material. This raw material we need. Canada puts an export duty 
on that and prohibits exporting, and in consequence American industry 
suffers. 

The Chairman. That is an argument that belongs to the Committee 
on Ways and Means. 

Mr. (jRATWiCK. No; your bill proposes to prevent Canadians from 
exporting power. Even if the Canadian power were allowed to come 
into Buffalo, it would put us in the hands of but one concern. 

The Chairman. Which concern? 

Mr. Gratwick. The Canadian Power Company. We are on friendly 
terms with them; but there is nothing like competition. 

The Chairman. Is any other competition developing? 

Mr. Gratwick. Yes. The Hydraulic Power Company. 

The Chairman. Does the General Electrical Company want to 
come in? 

Mr. Gratwick. We will let them make their own argument. 

The Chairman. You want 40,000 cubic feet per second to be drawn 
from the American side, and full competition with Canada besides. 

Mr. Gratwick. I am placed in a delicate position in .that respect. I 
do not want to urge any proposition that would be hostile to America 
or to the Hydraulic Power Company, but 1 think that it would be emi- 
nently fair to leave the rights as they are. The hydraulic company 
has been selling to this country, and the Niagara Power Compan}^ has 
also been selling. 

The Chairman. Do you mean that the prices on the American side 
have not been reasonable since Buffalo has been utilizing the power? 

Mr. Gratwick. No. 

The Chairman. And the only way in which it can be made reason- 
able is by importing power from Canada? 

Mr. Gratwick. 1 think that the only reasonable wa}^ is by competi- 
tion, and the only source of that competition, and the only one that 
we can get, is from Canada. And, further, I am convinced that we 
have an increasing number of industries in Buffalo. They are coming 
every month; thev are inv^esting millions of dollars; they will go 
where they can get the cheapest power, and you will find that if we 
prohibit the importation of electrical power from Canada a large pro- 
portion of these industries will locate in Canada with their American 
capital and labor. 

The Chairman. Then you favor an unlimited importation of Cana- 
dian power? 

Mr. Gratwick. I do. 



PEESERVATION OF NIAGARA FALLS. 93 

The Chairman. At the same time you say that the city of Buffalo 
is desirous that the cataract be preserved. 

Mr. Gratwick. Yes, sir. 

The Chairman. Nevertheless, a^ou are in favor of an unlimited 
importation of power? 

Mr. Gratwick. Absolutely. 

The Chairman. There is a line of cables being constructed to Roch- 
ester, Syracuse, Erie, and Cleveland? 

Mr. Gratwick. Yes. sir. 

The Chairman. Is it not perfectly clear that if this unlimited impor- 
tation be allowed through this increasing- denuaid for power that it is 
onl}' a question of a few years when the waters of the Niagara River 
will be entirel}^ diverted for that purpose? 

Mr. Gratwick. Absolutely not. 

The Chairman. Is not that a natural conclusion? 

Mr. Gratwick. I think not. 

The Chairman. The committee would like to hear you on that point. 

Mr. Gratwick. The fact of the prohibition of the importation of 
electrical power from Canada is not going to stop that power being- 
generated in Canada nor prevent the location of industries on the 
Canadian side. 

The Chaiilman. We would have no control over the question except 
on the American side. 

Mr. Gratwick. That is right. 

The Chairman. Suppose that regulations w^ere adopted in the United 
States looking to the preservation of the Falls, do you think that Canada 
would go on diverting the water in such a wa}^ as to destroy the cataract? 

Mr. Gratwick. It is doing that very thing. They have got three 
concerns on the Canadian side, and every one of them take every cubic 
foot of water they are entitled to. Andthej^ will fultill their contracts 
to the letter, and the result will be that they will generate from 300,000 
to 400,000 horsepower there. And that would lead to the location of 
industries on the Canadian side that ought to be on our side. 

Mr, Lawrence. I suppose, as a matter of fact, that while this cheap 
power has been developing at Niagara Falls, the people have not been 
getting the advantage of it so far as prices are concerned. 

Mr. Gratwick. They are beginning to now. 

Mr. Lawrence. They have not done so heretofore. 

Mr. Gratwick. No; not generally. 

Mr. Lawrence. Your claim is that the only way they can get that 
advantage is b\^ Canadian competition. 

Mr. Gratwick. There is nothing like competition in all kinds of 
business. 

Mr. Alexander. Buffalo has had the same advantage as to prices 
that Niagara Falls has? 

Mr. Gratwick. Oh, yes. 

Mr. Alexander. Is it not a fact that the great outlay of money 
and the evolution of the application of electricity has been cheapening 
it to the people? 

Mr. Gratwick. Decidedly so. But I think that the main item in 
that cheapening is the competition from the C/anadian concerns. 

The Chairman. For how long a time has this power been furnished 
by the Niagara Falls Power Company? 
p N F — 06 7 



94 PRESEEVATION OP NIAGARA PALLS. 

Mr. Gratwiok, It must have been for a dozen years or more. 

The Chairman, ^^'hat is the amount used in Buffalo? 

Mr. Gratwick. They are selling- about 85,000 horsepower. 

The Chairman. They have lowered the price of power at Buffalo? 

Mr. Gratwick. Oh, yes. The city and suburban lines are using it. 

Mr. Davidson. What do thej pay for arc lights? 

Mr. Gratwick. Seventy-live dollars. 

Mr. Davidson. How long have they been paying $75? 

Mr. Gratwick, Since 1898. 

Mr. Davidson. How does it compare with the price in Philadelphia, 
Baltimore, New York, and other cities? 

Mr. Gratwick. It is about the average price. 

Mr. Davidson. So that by reason of this cheap power produced at 
Niagara Falls, power to the city of Buffalo is not a great deal cheaper 
than it is in other cities ? 

Mr. Gratwick. It is not j^et, because there has been only one source 
from which we could get it. But we are now going to have this addi- 
tional Canadian source, possibly. Last week the price was reduced 
from 175 to $56. 

Mr. Davidson. Was that brought about by competition with Can- 
adian power? 

Mr. Gratwick. Yes, sir. That is the most vital thing to the city 
of Buffalo to-day. Do not understand me as advocating giving to 
ever}^ company all the theoretical and technical rights they have. But 
the city of Buffalo will stand behind you in any proposition which will 
give us more power at a cheaper rate. We believe in giving the pres- 
ent companies their rights where they have made expenditures in good 
faith. Most of these Canadian companies are not producing power to 
any great extent, as I understand the matter. But they are putting 
in a great many millions of dollars in their plants, and within the next 
few months (or perhaps weeks) they will be generating a large amount 
of power. It would be unfair, it seems to me, to cut them off* simply 
because they are a month or two late. 

The Chairman. Can you give us a list of the concerns that have 
those rights? 

Mr. Gratwick. The best way would be to write to the speaker of 
the legislature of the State of New York, and you can get from him 
copies of the bills introduced repealing some four or rive charters, 
the keeping alive of which can well be spared. 

The Chairman. What amount of power would Buffalo use derived 
from the Falls? 

Mr. Gratwick. That would be mere guesswork. While we now 
use 25,000 horsepower, I would not be surprised if we could use 
200,000 horsepower. 

The Chairman. If furnished cheaper it would lead to an enormous 
demand ? 

Mr. Gratwick. Yes, sir; to an enormous demand. The logical 
point is Niagara on the American side. It has got water facilities. 
We will dredge the Buffalo River at our own expense, and make a 
20-foot tunnel. We will develop the frontier on the American side. 

The Chairman. Rochester would expect a very considerable amount 
of power? 

Mr. Gratwick. I suppose that she would be entitled to what she 
could bid for. Of course she is generating her own power. 



PEESERVATION OF NIAGARA FALLS. 95 

The CuAiEMAN. A number of intervening towns between would 
expect a great deal of power? 

Mr. Gratwick. Undoubtedly. 

The Chairman. There is consumed at Niagara Falls, perhaps, 
50,000 horsepower. Syracuse is endeavoring* to get power, and the 
railways between Buffalo and Syracuse need power. Now, do j^ou say 
to this committee tliat those demands for power from those cities, 
l)eginning with Bufi'alo, can be supplied to the extent they desire and 
tlie Falls still be preserved as a scenic spectacle? 

Mr. Gratwick. 1 do. I thinic that can be done because the amount 
of power consumed now has no appreciable effect on the Falls. 

The Chairman. How much is being generated now? 

Mr. Gratwick. One hundred and thirty thousand to 135,000 
horsepower. 

Mr. Alexander. Have you considered that question sufficient!}^ to 
give a categorical answer to the chairman's question, How can we 
limit the supply on the Canadian side? 

Mr. Gratwick. You can limit by agreement with Canada. You 
can do it by having Canada abrogate such charters as have not been 
entered upon in good faith, just as the State of New York is to abro- 
gate the charters of four or five concerns. It is inmiensoly desirable 
that this should be done. Let Canada join and do something similar 
to what New York is doing. 

Mr. Alexander. Who will speak for Canada? 

Mr. Gratwick. I do not know. I suppose that she would not 
object. 

The Chairman. Do you believe that if regulations were adopted in 
this country which would prevent the desecration of the Falls that 
Canada would continue to remove water on the Canadian side to an 
indefinite extent? 

Mr. Gratwick. I do not think so. I think that Canada is waking 
up to the situation. But Canada, I understand, has specific contracts 
with concerns to generate power, among them the Niagara Falls Power 
Company, the Ontario Power Compan3% and the Electrical Developing 
Company. I am not, however, familiar with those matters. Those 
concerns have put in improvements in their plants for generating 
power to meet their contracts. 1 think that Canada has reached a 
point where she will not let additional concerns come in. There have 
been additional concerns with rights to take power, but such concerns 
have not entered on their rights. 1 think that Canada would cut 
those off. 

Mr. Lawrence. I understand you to say that if we keep this pro- 
vision in the bill, prohibiting the importation of power from Canada, 
it will prevent Buffalo from getting cheap power. 

Mr. Gratwick. There is not the slightest question about it. 

Mr. Lawrence. In that opinion you are representing the ideas of 
the Chamber of Commerce of Buffalo? 

Mr. Gratwick. I am. I am president of the Chamber of Com- 
merce of Buffalo, and I speak authoritatively. That was one thing 
about which we were most urgent and solicitous; and that is one thing 
to which the city council aiid the citizens of Buffalo are opposed, 
namely, the liadting or prohibition of the importation of ('anadian 
power. 



96 PRESERVATION OF NIAGARA FALLS. 

Mr, Lawt^enck. And yet there is not much use in our trying to 
limit the amount generated on the American side if Canada be per- 
mitted to go to the full extent to that side. 

The Chairman. You Imve expressl}' stated that you Avere In favor 
of unlinnted rights being allowed. 

Mr. Gkatwick. That is true. Yes. 

Mr. Bede. Up to the limit of their rights? 

Mr. Gratwick. Yes. In connection with the abrogation of unused 
charters in this country I think that immediate ste})s should ])e taken 
with the Dominion to abrogate some charters over there, and hold tlie 
proposition down to the point where it now is, and do not let the 
entire amount be diverted except so far as it has been authorized in 
good faith and acted on. 

Mr. Lawrence. Do you think that it would do any good to limit 
the amount of power? 

Mr. Gratwick. We have sent American industries over there in 
that way. 

Mr. Davidson. You do not mean unlimited rights, but limiting 
them to their grants? 

The Chairman. What do we understand about that? 

Mr. Gratwick. I do not suppose that this country could take cog- 
nizance of what Cantula has done to that extent. Tliis country should 
abrogate the charters which have not been exercised by arrangement 
with the Dominion of Canada. 

Mr. Jones. Don't you think that the putting of a limitation in this 
bill would lead the Dominion of Canada to shut off further grants over 
there ? 

Mr. Gratwick. i do not know that it Avould have any particular 
effect on Canada, but Canada is as fully alive to the question as we are, 
and I think that it would not be a difficult matter to take up the ques- 
tion diplomatically Avith Canada so that she would abrogate the per- 
mits which have not been used. 

Mr. Jones. Do you think that the interest of the people is suffi- 
ciently aroused as to the desirability of preserving the scenic beauty 
of the falls? 

Mr, Gratwick. Yes, 

Mr. Alexander. Buffalo has expressed through the Chamber of 
Commerce and the conunon council that she would be entirely satisfied 
to let new power be generated by existing corporations on the Cana- 
dian side, and prohibit the bringing in of any further power than the 
present capacity. 

Mr. Gratwick. Buffalo has not gone into it to that extent. I, do 
not think that that would be fair. 

City Clerk's Office, City and County Hall, 

Bnijalo, April IS, 1906. 
To whom it may concern: 

I herel)y certify that at a session of the l)oar(l of aldermen of the city of Buffalo, 
held in the city a'nd connty hall on the 16th day of April, A. D. 1906, a resolution 
was adopted, of which the following is a true copy: 

FROM THE MAYOR. 

Buffalo, April 16, 1906. 
As your honorable body is aware, there is pending in the Congress of the United 
States a bill introduced by Representative Barton, which I am informed by the pres- 
ident of the Chamber of Commerce would, among other provisions, prohibit the 
importation of electric power to Buffalo from Canada. 



PEESERVATION OF NIAGARA FALLS. 97 

I believe this feature of the proponed measure to be adverse to the interests of 
Buffalo. The present power monopoly expects to bring over power from Canada. 
Otlier power companies have similar plans. The hope of Buffalo for a still larger 
power supply not only for the monopoly, but for other power companies, rests in a 
measure on ]iower from the Canadian side. 

The president of the Chamber of Commerce informs me that a hearing on the 
Burton bill will be held on Thursday, at which time the Chamber of Commerce will 
api)ear by representatives, and I recommend tJiat tJte riti/ of Buffalo, in so far as the hill 
proluhits'tJteiinportutiou of power, disapprove and transmit its disap/iroval to tJie proper 
authorities at Washington. 

Respectfully, yours, J. N. Adam, Mayor. 

Received, filed, and recommendation adopted. 

And that at a session of the board of council int'ii of the city of Buffalo, held in the 
city and county hall, on the ISth day of Aiail, A. D. 1906, the action of the board 
of aldermen in passing stiid resolution was duly concurred in. 

And I further certify that said resolution was submitted to his honor the mayor of 
said city of Buffalo, by whom the same was approved on the 18th day of April,' 1906. 

Attest: 

[seal.] Joseph 0. Bergmann, 

Deputy City Clerk. 

The Chairman. We have this resolution, and we have heard from 
some excellent gentlemen about their rights on this side and the bene- 
fits to 1)0 derived by diverting power from the Niagara River — great 
benefits to th-e whole country, etc. — and you now bring from the com- 
mon coiuicil a resolution in which they arc styled a power monopoly, 
and it is said that the only way to make this monooly behave itself is 
to admit power from^Canada. 

Mr. Lawrence. Up to this time we have heard the representatives 
of the monopolies, but now for the first time we are hearing a "rep- 
resentative of the people." 

Mr. Gratwick. As to Canadian power being alloAved to an unlim- 
ited extent, I do not mean quite that. I mean that the power gener- 
ated in Canada should be allowed to come into this country; and yet 
while in a sense it is unlimited, yet practically it is limited. There 
are three concerns competing in Canada. 

The Chairman. Do you know how much water thev have a right to 
withdraw above the Falls? 

Mr. Gratwick. In the vicinity of 350,000 horsepower. 

The Chairman. That is 30,000 cubic feet per second. Probably 
more than that. 

Mr. Gratwick. I do not speak for the power companies in Canada. 

Mr. Alexander. I want to ask you a question which is, perhaps, a 
repetition of what I have already asked other gentlemen. The Cana- 
dian Niagara Power Company has a capacity of 9,600 cubic feet per 
second, and the Ontario Power Company has a capacity of 12,000 cubic 
feet per second, the Electrical Development Company 11,300 cubic feet, 
and those are the three Canadian power companies which intend to bring 
in their product to the United States. 

Mr. Gratwick. Yes. Those three. 

Mr. Alexander. Now, if those companies are given the right to 
bring their product into the United States, as I understand that you, 
as a representative of the chamber of commerce, think it would be 
entirely satisfactory ? 

Mr. Gratwick. Yes, sir. 

Mr. Alexander. And that the bill limiting the importation of the 
product to that amount would be entirely satisfactory 2 



98 PRESERVATION OF NIAGARA FALLS. 

Mr. Gratwick. Yes, sir. If this committee saw fit to cut that out 
or join with Canada to prohibit concerns on this side or on the Canadian 
side, the city of Buffalo would be agreeable to it. 

The Chairman. Do you mean to say to this committee that so large 
a share of the water drawn from the Niagara River would not seriously 
diminish the beauty of the Falls? 

Mr. Gkatwick. I never looked at it in cubic feet. 
The Chairman. I use cubic feet diverted, because the reports have 
employed that method of computation. Of course you can not lot 
everyone take all the water he wants. The question for us to decide 
is how best to subserve the interests of industry and at the same time 
preserve the scenic grandeur of the Falls. 

Mr. Gratwick. How many cubic feet do you allow for 100,000 
horsepower? 

The Chairman. About 12 to 1, or 12,500, depending on the fall of 
the water. 

Mr. Gratwick. Twelve thousand five hundred cubic feet for 100,000 
horsepower. 

The Chairman. Each cubic foot averages, approximately, twelve or 
thirteen horsepower. 

Mr. Jones. Eight thousand six hundred cubic feet. 
Mr. Gratwick. Eight thousand six hundred cubic feet to 100,000 
horsepower. Then, they have, approximately, 500,000 horsepower, 
or rights to that amount on the American and Canadian sides. That 
estimate, I imagine, is approximately correct. ' 
The Chairman. It is by -no means correct. 
Mr, Gratwick. Why not? 

The Chairman. You have already enumerated something over 
60,000 cubic feet. 

Mr, Gratwick, There is 100,000 generated by the Niagara Power 
Company on the American side. 

The Chairman. They claim 100,000 additional horsepower. 
Mr. Gratwick. They have not done anything on that so far as we 
know. There is 60,000 horsepower for one company and 200,000 
horsepower for Canada and 200,000 horsepower for the Electrical 
Developing Company, making 43,000 cubic feet. 
The Chairman. That is only a part of it. 

Mr. Gratwick, No, I think not, with your permission, ^ That is 
what these companies are entitled to, 

Mr, Humphreys. We heard this morning that one company was 
entitled to 100,000 horsepower or more, and that, as a matter of fact, 
thev expended a great many millions of dollars to develop that. 

Mr. Gratwick, The amount of horsepower which I, as a layman, 
understand has been exercised in a bona fide way on both sides is 

100,000 horsepower by the Canadian Power Company 

The Chairman. What is the aggregate? 
Mr, Gratwick. About 500,000 horsepower. 

The Chairman. The right is already claimed to develop 842,000 
horsepower on the American side and 415,000 on the Canadian side, 
making a total of 757,000 horsepower. That amount allo\\s nothing 
for the General Electrical Company or the Niagara, Lockport and 



1 



Ontario (company on the American side, and includes 
the Canadian side. So that \'our estimate is altogeth( 



ther too small. 



PRESERVATION OF NIAGARA FALLS. 99 

Mr. Gratwick. I have s^iven you the estimate that nine out of ten 
business men in Buffalo ^ive, and I think that it is the proper one. 
You will iind that that is the claim. 

The Chairman. The estimates as to the quantity of water to be 
diverted materially affect the question befroe us. 

Mr. Gratwick. I do not think that you have included all the propo- 
sitions. Your proposition is, how much are the existing contracts 
going to take away from the river. One company has taken 8,600 
cubic feet, and that is the estimate for the production of 100,000 horse- 
power. Another compan}'^ takes 3,800 cubic feet; that is, the Hydrau- 
lic Power Company. Now, those two sources have not made any 
appreciable difference in the amount of water flowing over the Falls. 
I do not think that you will find in Buffalo, or anywhere else, any esti- 
mate that it has made any difference so far. 

Mr. Humphreys. It has not made anydiffcrence in the Falls nor 
has it made any difference in the prices to the people. 

Mr. Gratwick. It is beginning to. At the Falls j^ou can get elec- 
trical power for $16, as I understand, and ^20 is a reduced price as 
compared with the production of power by steam. It is as 20 to 75. 

Mr. Lawrence. Has the chamber of commerce or the city of Buf- 
falo taken any action as to the amount of water which it thinks it is 
safe to authorize to be diverted from the Niagara River ^ 

Mr. Gratwick. No, sir. 

Mr. Law^rence. Have they taken any action in reference to the 
prohibition of the importation of power from Canada. 

Mr. Gratwick. Yes, sir. I want to make you understand the dif- 
ference that exists, generally, with repect to concerns which have put 
a great many millions of dollars into their yjlants in good faith, and 
have water rights based on those concessions. And that is a matter 
in which the city of Buffalo is interested. And on the other side, pos- 
sibly, there are just as many concerns which have theoretical rights 
who have not done anything but sell stock; and the stock and fran- 
chise are owned l)y promoters who have no responsibility and whose 
only aiiu is to find somebody to hold up. 

The Chairman. We should be glad to have a list of such concerns — 
those that are owned by mere promoters. 

Mr. Gratw^ick. There are a numl^er of franchises which have been 
kept up, but with them I am not familiar. I can tell you the bona 
fide concerns. Those are the Niagara Power Company, on the Ameri- 
can and Canadian sides, and the one we call the Hydraulic Company. 
Then, on the Canadian side, there is the Ontario Power Company. 

The Chairman. Are there any other companies on the American 
side except those two? 

Mr. Gratwick. Those are the only two which have rights. 

Mr. Alexander. And what about the General Electric Company ? 

Mr. Gratwick. I will let that company speak for itself. I am not 
interested in the General Electric Company, but I am interested in the 
citv of Buffalo. If anvbodv has anv rights which he thinks are valu- 
able let him contend for them, the city of ^Buffalo is interested in 
concerns doing business in a bona tide way. Those are the only ones 
about which 1 know anything. 

The Chairman. In other words, as regards the Niagara Power (Com- 
pany. You only recognize the use of one tunnel by that company ? 



100 PRESERVATION OF NIAGARA FALLS. 

Mr. Gratwick. I do not speak as an expert, of course. They have 
only one tunnel, which is about 85,000 horsepower. There is an im- 
pression in Buffalo that they get about 100,000, but they do not. They 
really are not taking as much water from the river as has been claimed. 
As to the amount of power they generate I am in the dark. 

The Chairman, What amount of power is developed by the 
Hydraulic Power Company? 

Mr. Gratwick. I have an idea that it is in the neighborhood of 
40,000 horsepower. 

The Chairman. Is that their limit? 

Mr. Gratwick. I understand that to be the limit of the canal. They 
have been claiming the right to use 9,500 cu])ic feet per second. 

The Chairman. That would be over 100,000 horsepower. I do not 
think that 3^ou quite appreciate the magnitude of the concerns that 
claim rights to use the water of the Niagara River. Your estimates 
certainly do not compare at all with those presented to us during this 
hearing by representatives of the various companies. They claim in 
the United States at least twice the amount that you enumerate. There 
are 17,900 cubic feet which you do not seem to recognize at all. 

Mr. Gratwick. To what company do vou refer? 

The Chairman. To the General Electric Company. There is 4,000 
feet, as you state, which is now used by the Niagara Hydraulic Com- 
pany. The company claims the right to use 9,500 cubic feet, which 
would create over 100,000 horsepower. 

Mr. Gratwick. They have a canal. That canal is full of water, and 
has been ever since 1 can remember. They have been generating 
power. I have understood that it was about 40,000 horsepower. It 
may be more. 1 do not know what rights they could have to generate 
power. At the present time the impression is prevalent in Buffalo 
that it is about 40,000 horsepower. 

The Chairman. You come here with recommendations from the 
board of trade and the city council of Buffalo. Now, this committee 
desires to know whether you fully understand the situation. 

Mr. Gratwick. 1 think 1 do. 

Mr. Lawrence. You represent the chamber of commerce, and their 
idea is that they want to import power from Canada. That is one 
point. They do not express their views as to the amount of power 
generated and how much shall be generated. 

Mr. Lorimer. On that point I want to get clear. I was under the 
impression from what he said that he was in favor of permitting as 
much power as they claimed the right to generate, but in his last 
expressions he has rather indicated that he represents the people who 
favor permitting them to generate more power than they are now 
generating. 

Mr. Gratwick. I did not mean to be considered in that way. As 
I said before, there arc concerns — notably on the Canadian side— which 
gencr:ite a small amount of power because their plants are in process 
of construction. .Within a few months they will be generating up to 
their full capacity, or, certainly, as much as can be expected. 

Mr. Lorimer. Are 3"ou in favor of permitting them to generate 
power up to their full capacity and transmit that to the United States? 

Mr. Gratwick. 1 am, absolutely. 

Mr. Lorimer. Are 3^ou in favor of permitting them to generate the 



PRESERVATION OF NIAGARA FALLS. 101 

full amount of their capacity, or the capacity which they claim they 
have when they finish their Avorks on the American side? 

Mr. Gratwick. Well, I should say — now I am speaking- as a private 
citizen — that I would want to be guided by the legal aspects of the 
matter. If I make claims 

Mr. LoRiMER. Suppose they have rights under their charters from 
the State of New York to generate all the power that they claim thej'- 
have, are you in favor of permitting them to do that? 

Mr. Gratwick. It seems to me that it is a matter of moral right. 

Mr. LoRiJMER. In addition to that, the General Electric Company 
claims the right to use 7,000 cubic feet per second, or 200,000 horse- 
power. Are you in favor of permitting them to do that? 

Mr. Gratwick. I spoke somewhat sparingly of the (jeneral Electric 
Company. I do not know that the General Electric Company under 
the charters it may recently have acquired have done any bona iide 
work. They have bought some franchises which for a number of 
years they have hawked around the country, but can not utilize them. 
I think that nothing has been done on them. I could see no harm in 
keeping them out. 

Mr. LoRiMER. Do you favor permitting all these companies about 
which we have been talking utilizing the amount of water required to 
generate power up to their capacity, whether it destroys the beaut}' of 
the Falls or not? 

Mr. Gratwick. I would give them everything to which they are 
honestly and legally entitled. 

Mr. LoRiMER. Whether they destroy the beauty of the Falls or not, 
are you still in favor of it? 

Mr. Gratwick. Yes, sir; for this reason — and I regret to say it — I 
think that this movement has started a little bit too late. The time to 
start the movement was before the franchises were given and when 
there was no serious danger. If the Niagara Power Company had not 
been given any franchise this question would never have arisen. They 
have entered the business in good faith and have invested their money 
in good faith. I should greatly regret to see the Falls endangered by 
reason of this franchise or by reason of the investment of money, but 
I think that the country is morally bound to keep faith with them. 
In addition to that, as a kyman, I do not think that the amount of 
power which has been authorized so far is going to make any appre- 
ciable ditference. 

Mr. LoRiMER. In expressing yourself as you have as to the senti- 
ment of the people of the city of Butialo, do you think that you rep- 
resent that sentiment? 

Mr. Gratwick. I think I do. I think that there is no question 
about it. 

Mr. Ellis. You went further than the resolution of the common 
council. Do you think that the resolution of the Chamber of Com- 
merce goes as far as you have gone in your statement, when j^ou say 
that you believe that the rights — whatever they are — should be granted 
to these companies? 

Mr. Gratwick. Yes, sir. 

Mr. Ellis. Whether the Falls be harmed or not? 

Mr. Gratwick. I am speaking of the city of Buffalo, and the pro- 
hibition of the importation of electrical power. 



102 PRESERVATION OF NIAGARA FALLS. 

Mr. Ellis. Your interest is industrial. First and foremost you 
want electrical power ^ 

Mr. Gratwick. Yes; if the city of Buffalo thought that the Falls 
were in danger 

Mr. Bede. The beauty of the Falls or the business of the city ? 

Mr. Gratwick. It is decidedly a matter of business to the city of 
Buffalo. It is altruistic to the rest of the country. 

Mr. HuMPiiRp]YS. You said that you regretted to say that the (tov- 
ernment had started too late, and yet you say that you do not think 
that the beauty of the Falls is going to be impaired. What do 3^ou 
mean by that? 

Mr. Gratwick. That would seem to be an anomalous statement, 
and yet it is true. I spoke of the advisability of it. 1 think that it 
would probably be better in a theoretical view, so far as the scenic 
beaut}" of the Falls is concerned, if there were no industries there. 
Then that would be the ideal condition. 

Mr. LoKiMER. You say that you think that the agitation has started 
too late to prevent the use of any power already authorized. You 
have a certain amount of power authorized, and you have got to live 
up to that. Possibly it would be better if there were no power 
authorized at all. The State of New York and the Dominion of 
Canada have got contracts authorized. 

Mr. Davidson. You mean the State of New York. You do not 
mean the General Government. 

Mr. Gratwick. I understood that the chairman had made reference 
to some permits that had been granted by the Government. 

The Chairman. I merely asked whether any had been granted. 

Mr. Lawrence. As 1 understand, the Chamber of Commerce of 
Buffalo has expressed its opinion in favorof the importation of Canadian 
power. It would he of interest to this connnittee to know the amount 
of water that 3^ou think ought to l)e diverted for commercial purposes. 

Mr. G;RATWick. I appreciate your courtesy. I think as a fairly 
accurate' statement that 1 meant to sa}^ that 100,0U0 horsepower by 
the Niagara Falls Power Company is the amount generated. The 
Hydraulic Power Company generates about 40,000, but they have 
rights in excess of that on the Canadian side. The Niagara Falls 
Power Company has 100,000, and the Ontario Power Company has 
200,000, and the Electrical Development Company another 100,000. 

Mr. Lawrence. But neither the chamber of commerce nor the city 
council have acted formally except on the resolution as to the impor- 
tation of power. 

Mr. Gratwick. That is the main thing. 

Mr. Lawrence. It is the only thing they acted upon? 

Mr. Gratwick. Except that the chamber of commerce protested 
against doing awa}^ with vested rights. 

Mr. Lawrence. Is that in the chamber of commerce resolution? 

Mr. Gratwick. Yes, sir. 

Mr. Lawrence. I did not know that. 

Mr. Gratwick. The resolutions were framed on the basis of the 
amount of power which bona tide companies would have a right to 
generate. 

Mr. Kansdell. As to the question of vested rights, if it becomes, 
in the judgment of this committees, desirable that the scenic effect of 
the Falls should be preserved, had we not better pay for some of the 



PRESERVATION OF NIAGARA FALLS. 103 

vested rights >)y exercising the riglit of eminent domain, as is done in 
man}' instances^ The question is whether the Government ought not 
to pay something in the case of vested rights, if it becomes desirable. 

i\Ir. Gkatwick. It would be a question which would depend largely 
on the amount involved and the benefits accruing by such expenditure. 

Mr. Davidson. Do yon think that the authorization to take as much 
as 40 per cent of the flow of the water would affect the scenic beauty 
of the Falls ^ 

Mr. Gkatwick. I do not know. I see by this report of the 
Waterwa5's Commission that it gives the mean level of the Lakes. I 
have read this report. It gives amount of flow at the mean level of 
the Lakes at over 222,000 cubic feet per secx)nd. According to my 
figures, that would give from 43,000 to 45,000 cubic feet, which is now 
authorized. 

Mr. Davidson. I was not pressing the question as to your judgment 
as to the amount authorized. There has been testimony given here, 
and I ask you as a layman, and as a man representing the city of Buflalo, 
all interested in the preservation of the beauty of the Falls, if you think 
a 40-per-cent fall of the water over the crescent were to be diverted 
it would interfere with the beauty of the Falls. 

Mr. Gratwick. I would dislike to see it go up to that proportion. 
It would then become a serious matter. According to this report there 
seems to be from 43,000 to 45,000 cubic feet authorized; 20,000 and 
40,000 are quite difl'erent. I think there would be a serious question 
in allowing a diversion of one-fifth of the water going over the Falls. 
I have no doubt that I have been there at the Falls when a great deal 
more than one-fifth of the water had been blown back, but I would not 
notice any difference. 

The Chairman. The amount, according to these charters, is fully 
set forth in the report of the Commission as 60,900 feet. That is the 
amount that it is claimed is authorized to be diverted. That does not 
include the 14,000 feet which the Chicago Drainage Canal desires to 
divert, making 74,900 cubic feet. In addition, the* General Electric 
Company is asking permission to divert 17,900 feet, making in all 
92,800 feet, which is considerably over 45 per cent of the flow. There 
is still another company claiming the right to divert 10,000 cubic feet. 
Now, you say that you do not mean to interfere with vested rights, 
and yet here are claims the validity of which must be considered, and 
here is the demand of C'hicago, which is deserving of as much atten- 
tion as the development of power. That is the proposition before us. 
It is a very much smaller amount which you mention. The trouble, 
in brief, is more serious than you contemplate. 

Mr. Gratwick. No, sir. I think that I appreciate the seriousness 
of the situation, but it is possible that you may have inadvertently 
added to those figures the rights of concerns that may not have any 
definite rights. Have you looked into the claim of the General Electric 
Compan}^ ? 

The Chairman. That was extensively argued before us on Monday. 

Mr. Gratwick. They undoubtedly know what they have. 

The Chairman. They make a proposition that deserves careful con- 
sideration, which, if acted upon, would benefit the country as much as 
any which has been presented. They would develop a very much 
larger amount of power in proportion to the quantity of water diverted. 
In the next place, it is taken from a part of the river where it does 



104 PRESERVATION" OF NIAGARA FALLS. 

not withdraw so large a share of water from the American Falls as do 
the other companies. And, again, thej^ offer to give a very large con- 
cession for the privilege — a concession that amounts to several millions 
of dollars. 

Mr. Gratwick, That is a serious factor. The industrial develop- 
ment is worthy of serious consideration when you consider the devel- 
opment of power at $16 as compared with 175 when produced by 
steam. It is very important, and you have a very large proposition 
which involves a tremendous saving. 

The Chairman. That is worthy of consideration. I take it that you 
do not favor as a mere commercial proposition the allowing of power 
to be used that entails the destruction of the beauty of the Falls. 

Mr, Gratwick. 1 do not think that you can draw a hard and fast 
line. You want to arrive at a happy medium where the powers and 
grants can be allowed to be exercised, and where the Canadian power 
will not have to be prohibited, and yet leave the Falls practically as 
they are to-day. When you put the figures at 60,000 cubic feet you 
are stretching it a little bit, I fear. 

Thereupon, at 12.30 o'clock p. m., the committee adjourned to meet 
the following day at 10.30 o'clock a. m. 



RESOLUTIONS OF BUFFALO CHAMBER OF COMMERCE. 

Whereas there has been introduced in Congress a bill which in substance prohibits 
the diversion of water from Niagara River except upon revocable permits, to be 
granted by the Secretary of War; authorizes revocable permits for the diversion of 
water from said Niagara River for the creation of power, but only to individuals, 
companies, or corporations which are now actually producing power from said water, 
and to them only to the amount now actually in use by such individuals, companies, 
or corporations, and which prohibits the transmission of electric i)ower into the 
United States from Canada when such power is generated from the waters of Niagara 
River or any of its tributaries, except as to power now being brought in; and 

Whereas the generation of electric power at Niagara Falls, both on the American 
and Canadian side, has been and will be of inestimable advantage for the develop- 
ment of industrial enterprises at Buffalo and Niagara frontier, as well as to cities and 
towns adjacent thereto, as well as for the electrification of present steam surface rail- 
roads; and 

Believing that recij^rocal trade relations with Canada should be strongly encouraged 
and no legislation hostile to such an ultimate arrangement be enacted; and 

Believing if the aforesaid bill is enacted into law, it will seriously retard the growth 
of Buffalo and Niagara frontier in commerce and industry and prevent the comple- 
tion of industrial projects already contemplated; therefore be it 

Resolved, That the Chamber of Commerce of Buffalo emphatically protests against 
the enactment of any bill into law which prohibits the importation of power from 
Canada genera#'(i from the waters of Niagara River as being wholly unnet'es;^ary and 
unwise and prejudicial to the public interests of Buffalo and the Niagara frontier, as 
well as retarding the completion of large commercial and industrial projects now 
contemplated, and preventing the further development of industries requiring large 
units of electrical ]>ower; and be it further 

Resolred, That the chamber of commerce respectfully urge the members of Con- 
gress from the city of Buffalo and State of New York to use every honorable means 
to defeat the passage of any such legislation; and be it further 

Rembed, That a copy of this resolution be transmitted to the members of Congress 
from the State of New York and the members of the House Committee on Rivers 
and Harbors. 

Attest: F. Howard Mason, ISecretary. 



peeservation of niagara falls. 105 

Committee on Rivers and Harbors, 

House of Representatives, 

Friday, Ajyril 20, 1906. 
The committee met at 10.30 o'clock a. m., Hon. Theodore E. Burton 
in the chair. 

The Chairman, We have two hearings this morning; we have the 
transmission company from Canada, and also a hearing that has 
reference to the rapids below the falls. 

STATEMENT OF FRANKLIN D. LOCKE, ESQ., COUNSEL, ONTARIO 

POWER COMPANY. 

Mr. Locke. Mr. Chairman, I have spent some time since the ad- 
journment yesterday in familiarizing myself with the record, so that 
I need not detain you long, and I need not thrash over any old straw 
in what I have to say. 

I appear here for the Ontario Power Company, of Niagara Falls. 
From the record I think there are certain facts that have been estab- 
lished sufficiently for the guidance of this committee. I think, in the 
first place, it stands unquestioned as an unquestioned fact that the 
fee to the Niagara River easterly from the international boundary 
ever since the grant of Charles II to the Duke of York is in the 
State of New York, holding it in trust for the people of that State 
and for the riparian owners; that the fee on the other side is vested 
in the Dominion of Canada, subject to the like trusts; that the 
Federal Government has not and never has had any interest in that 
fee or any authority regarding the premises, except such as it gets 
from its right to control navigable rivers. Secondly, I think it is 
established that the State of New York and the Dominion of Canada, 
exercising their respective police powers properly, have granted to 
these different corporations rights under which they seek to divert 
certain waters immediately above the catfiract, restoring them to 
the channel immediately below the cataract; that those rights have 
been the subject of investments of American capital to the amount of 
jnany millions of dollars; that the rights and privileges granted, and 
lawfully granted, to those corporations have been made the subject 
of mortgage, upon which issues of bonds have been based, and that 
those issues to the amount of millions of dollars are held by American 
investors to-day from Boston to Chicago, and from North to South, 
and all are affected by the action you may take here. Those invest- 
ments on the part of the owners of the property have been made in 
good faith; the investments and the bonds have been made in good 
faith, and they are entitled to the protection of the law. 

Thirdly, I think it is clearly established that the Niagara River 
between the points where water is taken from it and the point at 
which that water is restored is not navigable, and never has been 
navigable, and that the Federal jurisdiction extends over that prop- 
erty only to this point ; that it may, under its general authority, 
enter upon that stream and make a navigable channel from the 
waters above to the waters below the falls. It is clearly proven here 
that no diversion of water which has yet taken place has in anywise 
interfered with the navigability of Niagara River, and I maintain— 
and I understand that the committee consists of fifteen lawyers and 



106 PRESERVATION OF NIAGARA FALLS. 

two gentlemen — I maintain before you lawyers, the Federal jurisdic- 
tion rests upon that fact. 

Mr. Jones. You do not consider the other two members of the 
committee of any importance? 

Mr. Locke. I take their word for it. I have no information ex- 
cept what they give me. 

Mr. Bede. I merely suggest that those two members who are not 
lawyers should pass upon the facts. 

Mr. Locke. Now, fourthly, I say this without fear of denial from 
anybody who is familiar with the facts : That the diversion of water 
up to the present moment has not in anywise interfered with the 
scenic view which you gentlemen are so anxious to protect. To the 
present moment— I have known those falls for forty years — they are 
as perfect as they were forty years ago. It is unquestioned, again, 
that there can be considerable diversion of the waters without inter- 
fering with the scenic view which you are so anxious to protect. 

To what extent the additional diversions can be made is a question 
for engineers, and about which men may differ, but a considerable 
amount evidently can be diverted, and that is fairly established here, 
without any interference. 

I think it is fairly established, further, that there is no intention 
upon the part of the Federal Government to make that stream navi- 
gable Avhere it is not now navigable, and the power of Congress under 
the regulation of commerce and under the guise of an attempt to regu- 
late commerce is being invoked here to do something which has no rela- 
tion to commerce, which has nothing to do with the navigability of 
the stream, but which is simply intended to accomplish the preserva- 
tion of the scenic view, and might with equal propriety be used for 
the preservation of a view in Central Park, New York. 

Now, to advert to my company. If those things be established, 
the principal interest that I have in this bill is the third section, 
Avhich prevents the importation of electricity into this country. 
Having obtained our charters for entering into contracts with the 
Canadian authorities pursuant to the statutes under Avhich we are 
organized, having paid our money, we began the work of developing 
electricity. We think we have the most perfect plant in the world 
to-day for that purpose. The question came up about a market, and 
we looked to the United States, in part. Our contracts provide that 
to the extent of one-half of our production that product shall b^' 
marketed in Canada, if the opportunity exists, and we have to make 
any contract on this side subject and subservient to our Canadian 
agreement to furnish them the power on the other side. We are per- 
mitted by the law of our being to imj)ort to this country anything 
that we do not have to sell in Canada. We applied to the War De- 
partment to find out how we should get across the river, and the War 
Department advised us that they had no jurisdiction, that it did not 
interest them, that where we proposed to cross it was not navigable — 
it Avas not regarded as a navigable stream. So we strung our wires 
across the river. Some thoughtful man had in mind the question of 
customs. We applied to the Treasury Department. We were ad- 
vised by the Treasury Department that electricity Avas not subject 
to the customs law. We went ahead with our construction, and we 
made a contract with the New York corporation, which is authorized 
by the laws of the State of New York to make that contract, by which 



PEESERVATION OF NIAGARA FALLS. 107 

we agreed to sell them 00,000 horsepower delivered at the interna- 
tional boundary. 

The Chairman. What is that company, Mr. Locke? 

Mr. Locke, The Niagara, Lockport and Ontario Power Company, 
represented here by Mr. Cravath. We began the fulfillment of that 
contract. We have been delayed in our work in part, or they have 
been delayed in taking it. We are willing to deliver a large quantity. 
General (jreene will give you the statistics, tell you what we can do. 
He will tell j^ou better than I the amount of our expenditures, the 
capacity we have developed, the capacity we have developed in part, 
the cajoacity we are ready to develop. Now, out of the clear sky 
comes this bolt. To-day perhaps we are importing into the United 
States 1,200 horsepower delivered at Lockport, 12 miles distant. 
You say, " Stop right here ; although you have made a contract to 
deliver 60,000 horsepower, although you have made your construc- 
tion for that purpose, and although you have built your line to the 
international boundary pursuant to the law and your charter, stop 
here, with your 1,200 horsepower, and leave yourselves liable to the 
obligations of your contract." 

Mr. Bede. Did you understand the Treasury Department to rule 
that this electricity by its nature was not anything taxable or merely 
that it is not taxed under existing laAV ? 

Mr. Locke. I think the latter, that there was nothing, no law, 
under which you could tax it. I think it is nontaxable, however. The 
custom law is a proceeding in rem, and I do not know how you can 
hold electricity or sell it for nonpayment of duty. It would talce the 
ingenuity of a good lawyer to decide how you could handle electricity 
under a tariff law. 

Now, we have gone on in good faith and have built our works. We 
have put out our securities ; we have sold our bonds ; we have spent mil- 
lions of dollars besides in order to carry out these contracts, and for the 
purpose of doing something which you can not do directly. I main- 
tain you shut us off, or try to shut us off. I submit with all confi- 
dence that this bill is not upon the right lines. I have seen the opin- 
ions of the lawyers which have been submitted to you, and everyone 
interested in this case. They are among the leading lawyers of the 
American bar. You will hardly find four standing higher than the 
four ex- Attorney-Generals who have given you their opinion — that 
the only way to proceed here to accomplish the purpose you have in 
view is on the treaty side of the Government. 

Mr. Humphreys. Where is that opinion you speak of? 

Mr. Locke. It is among your files. There is the opinion of Mr. 
Taft; there is the opinion of Senator Knox: there is the opinion of 
Secretary Moody, and there is the opinion of John W. Griggs. This 
is the document [exhibiting document]. 

Mr. Jones. Has it been filed with our cominittee ? 

Mr. Locke. It has. 

Mr. Jones. That is the first I have heard of it. 

Mr. Locke. Senate report 1611. 

A Bystander, It is a printed document, a part of the proceedings. 

Mr. Alexander. General Greene, will you give the number again? 

Mr. Greene, Calendar No. 1562, Senate report 1611. It contains 
the opinions of Mr. Moody, Mr. Knox, and Mr. Griggs. 



108 PEESERVATION OP NIAGARA FALLS. 

Mr. Locke. Their opinion is to the effect that that stream is not 
navigable at that point, and that except for the purpose of taking 
hold of it and making it navigable the powers of Congress are not 
exercisable. Nobody knows where the treaty power of the Govern- 
ment is, so far as I know, individually, and they say that the proper 
place to accomplish what you desire to accomplish is on the treaty side 
of the Government. 

I insist, therefore, in conclusion, that upon the record, upon the 
facts that are established, upon the admitted situation there is no in- 
tention upon the part of the Government to make that stream navi- 
gable where it is now nonnavigable, upon the good faith we have 
shown and upon the moneys we have expended by authority of law, 
upon the doubt that exists with regard to this bill in the minds of 
these independent, efficient, and capable lawyers, most capable law- 
yers, under all these circumstances, and insist that this bill ought not 
to be reported out, that some other procedure should be adopted. I 
think these comj^anies and your committee, or a subcommittee, could 
get together and do something — I do not know what. Public senti- 
ment, of course, is in favor of the preservation of Niagara Falls. 

Mr. Humphreys. Tliese gentlemen you speak of do not deny the 
power of Congress to enact the section that you particularly com- 
plain of ? 

JVIr. Locke. No. I claim that is unconstitutional from another 
ground, and I will close with that, I claim that it is unconstitu- 
tional under the ninth section of the first article, which obligates you 
to give fair treatment, like treatment, to all ports. You can not take 
coal to Canada and make electricity and bring it back to the United 
States as a commercial proposition; you have to take electricity as 
it is generated there by water power and bring it to the United 
States. Electricity generated at Niagara Falls by the law of its being 
can only be imported into this country at one of two places — Niagara 
Falls or Buffalo. It has to be within a short radius there of 25 miles ; 
it can not be carried, it is dissipated. The known state of the art, the 
results of invention up to the present time, are not such as to permit 
it to be carried across Lake Erie or Lake Ontario, or around Lake 
Erie or around Lake Ontario, and so it has come right into one of 
those two ports. 

Mr. Davidson. Why not? Wliy can you not transport it? 

Mr. Locke. You can not carry it so far. 

Mr. Davidson. They are carrying it three times that far. 

Mr. Bede. Could they not put it in storage batteries and bring it in? 

Mr. Locke. Not as a commercial proposition. 

Mr. Davidson. In California they are carrying it farther than the 
distance from Niagara Falls to Detroit. 

Mr. Locke. You have more information than I have about that. 

The Chairman. The statement was made in a discussion on the 
floor of the House that in California it is being carried over 200 miles. 

Mr. Locke. Suppose it be; as soon as you make a difference between 
those ports and other ports of the country, they can take it from 
Shawinigan over to Plattsburg and deliver it, and so Plattsburg is 
favored. There is a point on the boundary line to which it could 
not be taken ; there is some port where it could not be admitted, and 
so long as that is so this is unequal under this clause in the Constitu- 
tion. 



PRESERVATION OF NIAGARA FALLS. 109 

The Chairman. Yet your interpretation of that clause of tlie Con- 
stitution is that it does not apply merely to commerce, but to all 
facilities arising from communication with other countries. 

Mr. Locke. Well, I start out with the proposition that electricity 
could not be the subject of commerce, but the more I have thought 
about it the more I think commerce means intercourse under the 
authorities. 

The Chairman. You give it a broader interi^retation. 

Mr. Locke. I think a fair construction of the authorities is that 
the right to regulate commerce covers something more than mer- 
chandise. 

Mr. HuiMPHREYS. It is the subject of larceny, is it not? 

Mr. Locke. Electricity? I think so. I think under certain con- 
ditions you could steal it, just as you could steal gas; and still it 
is not gas; it is a strange thing. They tell me that 3^ou can take a 
detached wire and it contains as much electricity as it ever can. You 
put a dynamo behind it and it will drive it out, but the electricity is 
there all the time; it adds nothing to the weight of the wire. You 
see it simply by its results. I thou.ght it was not commerce at first, 
but I am inclined to think it is commerce, and I don't know where 
the power of Congress would end with regard to it, but whatever is 
done, according to my interpretation of the Constitution, must be 
applicable to tlie entire United States, to every port in the United 
States, and you can not discriminate between ports that could be 
reached from Niagara Falls and the ports that could not be reached 
from Niagara Falls. 

The Chairman. Several questions occur to me, ]Mr. Locke. 

What is the amount of power which it is intended to be transmitted 
by this company from Canada? 

Mr. Locke. That is dependent upon the Canadian demand. There 
is a firm sale of 00,000 horsepower subject to that Canadian demand 
and subject to our obligations to meet it. The company have the 
further option on 120,000 horsepower more if they exercise that op- 
tion within a reasonable time, also subject to the Canadian demand. 

The Chairman. That would make 180,000 horsepower? 

Mr. Locke. 180,000 horsepower; yes. 

The Chairman. What is the number of cubic feet per second di- 
verted by this company ? 

Mr. Locke. Mr. Chairman, if you will let General Greene, who is 
here, answer those questions of the mathematics of the thing it will 
be better. He has more exact knowledge than I on the subject. 

STATEMENT OF PAUL D. CEAVATH, ESa., COUNSEL, NIAGARA, 
LOCKPOET AND ONTAEIO POWEE COMPANY. 

The Chairman. Yours is the company organized for the transmis- 
sion of power created in Canada ? 

Mr. Cravath. Not primarily. It is organized for the utilization 
of ]:>ower on the American side. 

Mr. Chairman and gentlemen, you have heard so many lawyers 
dready and you know so much law yourselves that I assume you are 
more interested in hearing from General Greene and Mr. Herschel, 
who are familiar with the technical side of this question, than from 
me, and so I will confine myself to a very brief statement with refer- 
ence to this matter, as to the position of my clients, the Niagara, 
p N F — 06 8 



110 PRESERVATION OP NIAGARA FALLS. 

Lockport and Ontario Power Company, which I slirJl for brevity 
call the Lockport company. Ar.d I shall proceed on the assumption, 
which I do not think sound, that Cona:ress has the power to enact 
some such legislation as this. But I think this assumption is sound, 
that there is a strong demand on the part of the people for adequate 
means to preserve the scenic beauty of Niagara Falls, and that in 
some M^ay or in some form that wish of the people will be finally given 
expression; that if not by an act of Congress or if not by a treaty, 
perhaps by approj^riate legislation in the State of New York or in 
Canada. 

We assume that whatever form this remedy finally takes, a sense 
of justice will dictate a reasonable regar.l for the vested interests 
which will be affected by any action upon this subject. I shall there- 
fore present as briefly as I can the position of my clients. 

This company was organized under the laws of New York in ISOJ. 
That year it acquired by a special act of the New York legislature 
the grant of the right to take water from the Niagara River for power 
purposes, for distribution in New York State, at a point about 10 
miles above Niagara Falls, near Tonawanda Creek. The grant con- 
templated that the water should be conducted from that point by a 
canal about 14 miles long to Lockjwrt, and there the power plant 
should be located. From that point the Avater would be carried, after 
its utilization in the power plant, by a stream called Eighteen mile 
Creek, to Lake Ontario. Therefore this plan differs essentially from 
any others before you, in that the water is taken fully 10 miles above 
the falls. The grant to this company gave the company ten years 
in which to begin work. Within that ten years the work began in 
substantial form, and has since been prosecuted. 

The enterprise acquired new life about ten years ago, when its 
control passed to a party of gentlemen headed by Mr. George West- 
inghouse, of Pittsburg. They formulated extensive plans for the 
development of this power plant on a large scale. They soon found, 
however, that to adequately use this power would involve several years 
of time for the construction of a necessary plant and canal and the en- 
largement of the river which would be the tailrace. They were very 
much impressed with the immediate necessity for a h.vjo amoui^t of 
cheap power in northern New York and with the possibilities of the 
utilization of this power as an encouragement to the connnerce and 
industry of that part of the State. They accordingly began nego- 
tiations with the Ontario Power Company, Mr. Locke's plant, which 
had then neared completion, a large power plant on the Canadian side, 
the company having power to market a large proportion of its power 
on the American side. They determined rather than to Avait three or 
four years until their own plant could be completed to at once mal^e 
a contract by which they could haA^e a large amount of this Canadian 
po\A'er for use on the American side. That contract, Avhich Avas made 
about a year and a half ago 

Mr. Locke. Late in 1004 

Mr. Cravath (continuing). GaA^e to the Lockport Company the 
right to use 60,000 horsepoAAcr and imposed upon it the obligation 
to take 60,000 flat within a reasonable period of time. It gave it the 
option to take two further lots of 00,000, or 180,000 in all, and sub- 
ject to certain restrictions imposed b}^ the contract. They acquired 



PRESERVATION OF NIAGARA FALLS. Ill 

the exclusive right to market the power of this company in the United 
States. Throughout, however, the acquisition of this riglit was con- 
sidered as part of the original plan for the utilization of the power 
at Lockport under the original grant. 

Having tlius agreed to take ()0,000 horsepower firm within a speci- 
fied period of time, the company proceeded to malve the necessary 
arrangements to market its power. It created a mortgage for $5,000,- 
000, it issued a large amount of its stock, it has actually sold $2,500,000 
of its first mortgage bonds, and has entered upon a series of expendi- 
tures, now almost completed, calling for $4,000,000, in the construc- 
tion of its distributing system in New York. By reference to the 
small map at the corner of the larger map you will see the distribut- 
ing system. Under the contract we take the power at the inter- 
national boundary line near the Suspension Bridge, and defray the 
entire expense of distributing that current on the American side. 
Our transmission line extends from that point on the river, near 
Lewiston, to Lockport, which becomes, so to speak, the distributing 
center. From there we have a transmission line extending south to 
Buffalo. Then the main transmission line extends east, and from 
Lockport to Rochester, and from Rochester to Syracuse; and that 
main line has many branch lines leading to many neighboring cities 
and towns. The entire mileage of our distributing system is 42 
miles, and that entire system is either constructed or in process of 
construction. Soon our $4,000,000 will have been expended entirely 
uj^on the creation of that system. We have purchased a right of way 
for the entire S3'stem, costing over $1,000,000, and the balance of our 
expenditure is in the transmission line itself, the converter house, and 
the various appurtenances. 

Mr. Bishop. What is the greatest distance you propose to carry it ? 

Mr. Cravath. One hundred and sixty miles; that is, from the 
power house to Syracuse. 

Of course, in order to make this enormous investment valuable we 
have had to make contracts for the sale of our power, and we have 
entered into contracts for the sale of 40,000 horsepower, or, to be 
more accurate, contracts which entitle the consumers to take 40,000 
and which require them to take a minimum of 15,000. But the con- 
ditions are such that in all human probability the entire 40,000 horse- 
power will be taken within a very short time after we begin the 
active distribution of current, which will be within a few months. 
We have such customers as the Lackawanna Steel Company, repre- 
sented here by Mr. Wickersham, whose enormous plant at South Buf- 
falo depends exclusively upon our current for its power. We have 
the New York Central Railroad Company, that has agreed to use 
our poAver exclusively for its electric lines. It has a very extensive 
system of electric lines west of Syracuse. The industries which have 
made arrangements to utilize our current involve hundreds of millions 
of dollars. Indeed it may be said that the whole industrial activities 
of that part of New York State center around the utilization of the 
current of this company and other companies engaged in similar busi- 
ness. We have entered into firm contracts for the sale of this power, 
and we have also in every important case subjected ourselves to heavy 
penalties in case we fail to deliver this power within a reasonable 
time. 



112 PRESEKVATION OF NIAGARA FALLS, 

We respectfully submit that we have been justified in proceeding 
with these expenditures — first, our expenditures in preparing to de- 
velop and beginning the development of our Lockport plant, and, 
second, in utilizing this Canadian power. We have been incor- 
porated by the only two governments that seem to have jurisdiction 
over us — the Canadian government and the government of New 
York State; we have received the necessary authority from those 
governments. We have a^ssumed that those governments were inter- 
ested, as you are, in preserving Niagara Falls, and were convinced, as 
we believe they are, that an amount of water vdiich would be diverted 
fcy the operations thus far authorized would not materially affect the 
scenic beauty of Niagara Falls. And we submit we had no reason 
to count upon Congressional legislation. We knew that the river 
was not navigable where we took our water ; we knew that no question 
of interstate commerce or navigation was involved, and we submit 
we have exercised every precaution that we shoidd have exercised 
or should have been exercised by prudent men in building up this 
business and creating this situation, in which we have already em- 
barked practically $4,000,000 of money, and with respect to which 
we are already committed to much larger investments. 

Now, of course, the enactment of such a bill as you propose, if it 
could be enforced, would ruin my client ; it would destroy this invest- 
ment, because this investment of $4,000,000 is absolutely of no value 
except for the purposes of utilizing the power which we have pur- 
chased from the Ontario Company and the power Avhicli we in time 
expect to generate at our Lockport plant. Indeed, if you shou.ld foi'- 
bid and should have the power to forbid the importation of power, 
it would ruin my client, because it would be ruined long before it 
could create its plant at Lockport, inasmuch as its obligations to 
deliver this 40,000 horsepower will soon accrue, and it will be ruined 
by the enormous penalties imposed by those contracts in case it failed 
to carry the contract out. 

I want to point out also that while we have invested a substantial 
sum in the develo])mcnt of our power enterprise at Lockport, this 
investment of $4,000,000 in our transmission line is also a step in the 
development of the Lockport enterprise, because the real estate which 
w^e have purchased, and many other provisions which we have made, 
are sufficient for a distributing system, not only to utilize this Cana- 
dian power up to 180,000 horsepower, but also to utilize and distribute 
our power generated at Lockport, and so a very substantial part of 
our investnient in this $4,000,000 transmission line is fairly incident 
to the ultimate developuient of our Lock]:)ort plant. 

Now, as to the amount of water we are likely to divert and as to the 
efi'ect our enterprise can have upon the Niagara River, as to the effect 
of the diversion of the water by the Ontario company, Mr. Green will 
speak with more precision than I can. I shall therefore only speak 
of our Lockport company. Unlike the other companies, Ave take our 
power 10 miles above the Falls. 

The Chairman. You are noAv speaking of the diversion you make 
on the American side? 

Mr. Ckavath. Yes; 10 miles above the Falls on the American side. 
The result will be that the water we take will be taken proportionately 
from the American Falls and the Canadian Falls. While our grant 
from the legislature of New York imposes no limit upon the amount of 



PBESERVATION OF NIAGARA FALLS. 113 

water we can take, there is a practical capacity on account of the limit 
of our Eighteenmile River, which is to be our tailrace, so we can not 
utilize more than 200,000 horsepower; that is the limit imposed by 
nature. To generate that amount of power will require about 9,000 
cubic feet of water per second, to be taken at the head of our canal, 
near Tonawanda Creek. That water will be taken from the river 10 
miles above the Falls and the take of the water will be distributed 
proportionately from the water going over the Canadian and over the 
American Falls. 

Mr. Davidson. I understand that you propose to develop 200,000 
horsepower from 9,000 cubic feet per second. 

Mr. Cravath. Yes, sir; that is the expectation, on account of the 
fall of the river there. 

Mr. Bede. That is more than the other companies get. 

Mr. Cravath. More than any of the others except the General 
Electric Company. I think they have a still greater horsepower in 
proportion to the cubic feet they get. The efficiency of a cubic foot 
of water depends on the fall. 

Mr. Alexander. How many feet of fall do j^ou have? 

Mr. Greene. It is from 6 to 300 feet. 

Mr. Cravath. The amount of power obtained there for the amount 
of water taken is very much greater than any of the other companies 
except under the so-called Love grant. If we take 9,000 cubic feet 
of water per second, roughly speaking, a thousand or 1,200 feet will 
come from the American Falls, and the balance will come from the 
Canadian Falls, that being the proportion substantially. 

Mr. Ellis. Will you state that proportion again? 

Mr. Cravath. If we take 9,000 feet I understand that we would 
tal<:e from a thousand to 1,200 feet from the American Falls and the 
balance would come from the Canadian Falls. 

Mr. Davidson. Eighteenmile Creek flows into Lake Ontario? 

Mr. Cravath. Yes. • 

Mr. Davidson. How far east of Lewiston? 

Mr. Cravath. About 20 miles. Whatever would be the effect of 
the taking this amount of water at Tonawanda Creek, it can not ma- 
terially affect the Niagara River; it can not affect it at all for the 
purposes of navigation. Under the existing practice the river is 
deep from Tonawanda Creek to the Falls, usually IT feet deep in the 
channel, and I think for the entire distance there is a channel of sub- 
stantial width, never less than 14 feet in depth. The few inches of 
water which we would take would not affect navigation. The navi- 
gation below Tonawanda Creek is confined to pleasure boats and a 
few local freight boats, the draft of those boats varying from 4 to 
9 feet. Nothing w^e could do multiplied several fold would affect 
that portion of the river for the purposes of navigation. 

The Chairman. That question has been somaAvhat discussed in the 
hearings. Mr. Cravath, do you limit the jurisdiction of Congress to 
existing navigation? 

Mr. Cravath. I should say not, Mr. Chairman. I assume that 
Congress has authority to pass such laws as are reasonably necessary 
to meet the probable requirements of navigation in the future. 

The Chairman. Is not the power really absolute? 

Mr. Cravath. I should say not, Mr. Chairman. 



114 PRESERVATION OF NIAGARA FALLS. 

The Chairman. Is it not the exercise of a political power? That 
is a question which assumes a great deal of importance in a discussion 
of this problem here. If you have any views on that subject we 
would like to hear them. 

Mr. Cravath. Without having made a close study of that subject, 
my feeling is that the mere fact that the United States Government 
takes control of a navigable stream for the purpose of protecting 
navigation does not give it control of that stream for all purposes. 

The Chairman. Perhaps that question is not involved, but just 
how great is its control for purposes of navigation? Another ques- 
tion is involved. SujDpose there are three sections of the stream, the 
upper and the lower sections are clearly navigable, and there is an 
intermediate section in which there are rapids; is the jurisdiction of 
Congress ousted from that intermediate section simply because there 
is no actual navigation there? If the regimen of that intermediate 
section would afl'ect the available water for navigation above and 
below, or might affect those sections, would not the jurisdiction of 
Congress extend over that intermediate section also? 

Mr. Cravath, I should be disposed to concede that Congress has 
jurisdiction over this portion of Niagara Eiver in so far as it may be 
necessary to protect navigation in adjacent waters. 

The Chairman. That is the intermediate section? 

Mr. Cravath.' Yes. If, for illustration, our enterprise would so 
diminish the water in Niagara Iliver as to affect the navigable high- 
way above I should think you would have jurisdiction, but we are 
advised — on that I can not speak very intelligently, not being an 
engineer, but we are advised — that no amount of water which we can 
take, coupled with the withdrawal of water by all the other compa- 
nies that have rights, could have an appreciable effect upon the util- 
ity of the river and the adjacent waters for navigation purposes. 

Mr. Lawrence. Where is the water that you divert from the 
Niagara Eiver returned to the river? 

Mr. Cravath. It is returned into Lake Ontario about 20 miles be- 
low the mouth of Niagara Eiver. 

The Chairman. If the right of the legislative branch to pass laws 
was denied simply because one diversion or three diversions do not 
affect the level, where are you going to stop; must the Congress wait 
until there have been ten or twenty or fifty diversions of water be- 
fore it can act ? 

Mr. Cravath. I should say, Mr. Chairman, that I am simply think- 
ing aloud, because I have not studied this subject nearly as much as 
you have 

The Chairman. Certainly, I understand. 

Mr. Cravath. I should say that Congress would have the power 
to prescribe a limit beyond which water would not be diverted from 
Niagara Eiver, provi^led such a provision were necessary to protect 
navigation in the Niagara Eiver or in adjacent Avatei's; but our 
proposition is that the combined withdrawal of water by all of these 
companies will not affect navigation in any of those waters. 

The Chairman. Yes ; but here is the question, Mr. Cravath : How 
are we to tell from our standpoint how many diversions there may be ? 
Suppose there were three companies incorporated by the State of 
New York authorized to divert water from that river, and during the 
summer vacation, or the vacation between this and the next session 



PEESERVATION OF NIAGARA FALLS. 115 

of Congress, a score should obtain that privilege. While that is a 
rather violent supposition, that is a possibility. Could not Congress 
act in limiting the amount of Avater to be taken, concluding that the 
time had arrived when there should be some action to meet not only 
present conditions but future conditions in the river? 

Mr. Cravath. I should say that Congress might have power be- 
fore any withdrawal of water had been made to prescribe a reason- 
able limit. 

The Chairman. Your idea would be a limit might be fixed ? 

Mr. Cravath. Beyond which water might not be drawn. I assume 
you have the power to make such a regulation if the interests of 
navigation required it, and that you are not concerned with any dis- 
putes that might arise between any claimants to use the water within 
the limits imposed. 

Mr. Sparkiman. You think Congress would be the sole judge of 
the limit to which it could go? 

Mr. Cravath. That is a very hard question. It is hard to define 
the line when discretion begins and ends. 

Mr. Burgess. You think that would be a question finally before the 
courts ? 

Mr. Cravath. I should think it would ; yes. I should say that if 
it were a conceded fact that the amount of water now withdrawn 
from the river did not injure navigation, an attempt on the part of 
Congress to forbid that withdrawal would be beyond its jurisdiction, 
and the court would so hold. 

The Chairman. Suppose it should be established, Mr. Cravath, 
that the level varies from year to year and information should be 
presented to the Congress to the effect that there was a probability 
that in succeeding years the level would be materially lower, could 
not Congress under those circumstances enact legislation looking to 
the preservation of the water as nearly as may be in its present con- 
dition ? 

Mr. Cravath. I should suppose, Mr. Chairman, that a probable 
recurrent reduction in volume would be an element you would be 
entitled to consider in devising reasonable regulation. 

The Chairman. The question is. What is the jurisdiction of Con- 
gress? Is it not absolute? 

Mr. Cravath. My feeling is that it is not ; my feeling is stated by 
the Supreme Court, or rather I have adopted as an expression of mj'^ 
views the language of the Supreme Court in the Escanaba case, 107 
United States. 

The Chairman. That was a case in regard to the swinging of 
bridges in the city of Chicago? 

Mr. Cravath. Yes ; but very apt as applied to the present situation : 

That Congress has coutrol over the waters of the United States which are 
navigable in fact in so far as may be necessary to insure their free navigation. 

Of course they were there dealing with obstructions. It seems to 
me that the statement equally applies to our situation. 

The Chairman. In that case the city of Chicago passed an ordi- 
nance that bridges across the river shordd be closed at certain times 
in the morning and evening. That is the case, is it not? 

Mr. Cravath. I believe so. 



116 PRESERVATION OF NIAGARA FALLS. 

The Chairiman. Congress had never acted upon that, had it, and 
it was an ordinance of the city of Chicago ? 

Mr. Cravath. Yes. 

The Chairman. Suppose Congress had taken up that subject and 
said, " We haven't j^et considered the question of the desirability of 
allowing those bridges to be closed morning and evening, but on full 
consideration we think public interests will be subserved by keeping 
navigation open at all times. There is an ordinance of the city of 
Chicago providing«that bridges may be closed certain hours, but we 
now pass a law to the effect that they shall be open at all times." 
Would it not be within tlie power of Congress to do it? Is not that 
decision based upon a situation in which Congress had not at all 
exercised its power ? 

Mr. Cravath. I should suppose so, because there you are dealing 
with a physical obstruction to navigation, and Congress has the right 
to make regulations within an infinite limit. It might go to the 
extent of entire prohibition; but our proposition with regard to 
Niagara River is that in all human probability the aggergate diver- 
sion proposed by all of the existing authorized enterprises would not 
appreciably affect the navigability of the Niagara Iliver or the 
adjacent waters. I shall not attempt to prove that proposition, be- 
cause it is an engineering question, but we are so advised. 

Mr. Jones. Suppose that Congress should declare that in the in- 
terest of navigation a limit should be fixed for the diversion of the 
water. Do you think the courts would review that declaration? 

Mr. Cravath. I should suppose the Supreme Court of the United 
States would have jurisdiction to determine whether you had gotten 
into a realm where you could exercise judgment and discretion. Sup- 
pose, for instance, you prohibited the tearing down of the Palisades, 
as an aid to navigation; I should say that the Supreme Court would 
say that that was so plain a case where navigation could not be af- 
fected that you, would not have jurisdiction. 

The Chairtman. Is it not in the power of Congress to declare when 
navigation is affected, and when we make that declaration would the 
courts review it ? 

Mr. Cravath. AVithin reasonable limits ; but it is very liKird to point 
out the line Avhere your action becomes arbitrary and beyond a rea- 
sonable governmental discretion. 

Mr. Davidson. What would you say to the ]:)roposition that in view 
of the possibility of the construction by the Government of a water- 
way on the American side around the Falls and the necessity of su])- 
plying it with water that Congress in advance of that construction 
and in view of its possible construction could regulate the amount that 
might be diverted ? 

Mr. Cravath. I would be disposed to say, thinking aloud again, 
that that was an element you had a right to consider. 

]\Ir. Bede. I understand you believe, that we can do almost every- 
thing for purposes of navigation? 

Mr. Cravath. Yes 

Mr. Bede. But it is not up to us to regulate the beauty of Niagara. 
Is that a fair statement of your position ? 

Mr. Cravath. Yes; that is a fair statement; and manifestly this 
legislation is for the beauty of Niagara Falls; that is its object. 

The Chairman. Suppose, however, the regulation and control of 



PEESERVATION OP NIAGARA FALLS, 117 

the level is ^something of which Congress has jurisdiction by reason 
of the fact that it does affect navigation; whatever the result, would 
it be an objection to this bill that as an incident to that control for the 
purposes of navigation the beauty of Niagara Falls was preserved? 
Suppose the jurisdiction attaches in the control of navigable waters; 
does not that jurisdiction remain 

Mr. Cravath. It would seem to me, Mr. Chairman, that the fact 
that you have jurisdiction to control naavigable waters in so far as is 
necessary to insure their free navigation does not give you juris- 
diction to do anything you choose to do regardless of the necessities 
of protecting waters for free navigation. For illustration, take the 
case w'e think exists: If w^e are right in thinking that the diversion 
of the water by the Canadian power company can in no event affect 
the navigability of those waters for reasonable purposes of naviga- 
tion, it seems to me that a regulation, the effect of which would be to 
prohibit the use of our plant, would be beyond your power; in other 
words, your regulation must have the effect, it seems to me, and the 
tendency to accomplish the purpose for which you have been given 
jurisdiction over navigable streams. 

]\Ir. Burgess. Then, if I understand you, your view of it is that 
the power of Congress is dependent upon a fact, wdiich fact is re- 
viewable by the courts; is that your view of it? 

Mr. Cravath. Yes; I should say that within certain limits the 
courts would have a right to determine whether the intervention of 
Congress w^as necessary or reasonable for the accomplishment of its 
purjiose in protecting navigation. 

Tlie Chairman. This question arises: Suppose Congress did have 
jurisdiction and it appeared by extrinsic evidence that one object of 
the exercise of jurisdiction, possibly the main object, some might say 
the sole object, was the preservation of Niagara Falls; could the 
courts inquire into that fact? 

Mr. Cravath. It seems to me they could, Mr. Chairman. 

The Chairman. Suppose you concede that the jurisdiction exists 
because it is a navigable stream ? 

Mr. Cravath. Let me take another illustration: Assume that you 
determine that some power company is going to remove Goat Island 
for the purpose of increasing the supply of water for its canal, and 
you, then, professing to exercise your power to protect navigation, 
enact a law prohibiting the removal of Goat Island, and it were ad- 
mitted that the existence or removal of Goat Island could not affect 
navigation, I should say the courts would hold that you acted with- 
out jurisdiction. It seems to me you would be attempting to exercise 
a power which was properly vested in the State. So, if we are right 
in our assumption that all we are doing or threatening to do can not 
affect navigation. Congress has not jurisdiction to interfere with us. 

Mr. Davidson. Then that proposition if carried out to its logical 
conclusion would result in taking into the courts every proposition in 
the United States where a riparian owner undertalves to divert Avater 
for his ow^n purposes, and leave the question of facts to be determined 
by a local jury as to whether it does or does not interfere with navi- 
gation. 

Mr, Cravath. No; not necessarily; because I say there is a line 
where you get beyond the realm of' the exercise of arbitrary power 



118 PRESERVATION OF NIAGARA FALLS. 

into the exercise of discretion. It is sometimes hard to tell where you 
cross that line. 

The Chairman. Is not that peculiarly an exercise of judicial or 
legislative j)Ower to determine where that line is? 

Mr. Ckavath. AVithin certain limits; yes. 

The Chairman. Is there any limit except bad faith or gross abuse 
of power with a view to improper objects? 

Mr. Cravath. I should say there was, Mr. Chairman. It seems to 
me that when Congress enacts legislation of this kind, apparently 
for the sole purpose of protecting the beauty of Niagara Falls, with- 
out any demand from the navigation interests, we have such a case 
where the purpose of your legislation is entirely different from that 
contemphited by the Constitution. 

The Chairman. It would not be exclusively for that purpose. 
There is a considerable amount of navigation on that river. There 
are great possibilities, as Mr. Davidson has suggested. There is a 
hope that at some time a canal may be constructed around the falls 
and rapids of Niagara River. A very elaborate survey has been 
made with that in view. Suppose Congress wanted to preserve the 
navigable quality of the river down to the very last point. Is not 
that a proper subject for consideration and action by Congress? 

Mr. Cravath. I should be disposed to think so; yes, sir. I should 
think, no doubt, that the probable or even possible future require- 
ments of navigation on those waters were entitled to consideration in 
determining the reasonableness of legislation. 

Mr. Sparkman. That would bring it back as to whether this legis- 
lation was advisable or not from the standpoint of policy. 

Mr. Cravath. If my advice is correct as to the practical situation, 
my feeling is that it is not a debatable question. I may be wrong, I 
may have heard but one side, but if my advice is somid there is 
nothing in the situation in the Niagara River which points to the 
necessity of legislation to protect navigation. 

Mr. Sparkman. I say that would be the question 

Mr. Davidson. Your argument ten years hence, after you have de- 
veloped your power at Lockport, constructed your works, your canal 
and your tailrace to Eighteen-Mile Creek, would be much more strenu- 
ous against legislation that would take your water away for the pur- 
pose of supplying it to a canal than it is to-day? 

Mr. Cravath. Undoubtedly. 

Mr. Davidson. Would it not be the better policy of Congress, then, 
to legislate early for the preservation of water looking to its use for 
the purposes of navigation to a larger degree in the future than at 
the present? 

Mr. Cravath. I entirely agree, sir, that the situation demands some 
effective restriction on the amount of water that can be diverted from 
Niagara Falls, whether it be for the purpose of navigation or beauty 
of the Falls. It seems to me the only object in view is the protection 
of the Falls, but I think we must all agree that some limit should be 
placed on the amount of water that shall be diverted from the Falls, 

Mr. Bishop. Where would you place that restriction? 

Mr. Cravath. That is an engineering question, but I will say a 
word about that. My information is that approximately — in fact, 
it is the report of your commission — approximately 60,000 cubic feet 



PRESERVATION OF NIAGARA FALLS. 119 

per second would be required for those having existing rights to 
fairly exercise their rights. 

The Chairman. But, Mr. Cravath, the 9,000 cubic feet for your 
Lockport Power Company is not taken into account in that coiiipu- 
tation. 

Mr, Cravath. No. 

The Chairman. And also 17,900 cubic feet which the General 
Electric Company asks for, both of which are outside of those esti- 
mates. 

Mr. Cravath. I was about to say that my information is that even 
more than 60,000 cubic feet could be taken without affecting the 
beauty of the falls or affecting navigation. Assuming that some- 
where about 80,000 cubic feet is the limit, and that limit is imposed, 
it seems to me that Congress should leave the interested parties free 
to determine among themselves, with the aid of the New York courts 
if need be, their relative rights for the division of that water. But 
it is distinctly unfair to vested interests for Congress to attempt to 
place a limit to the extent of saying that none of the water shall be 
taken, the limit not having been reached by corporations which have 
jolants or which have partiallv constructed plants or which have 
begun the exercise of their rights. Take, for instance, the com- 
panies in which I am interested. You would ruin one company, you 
would prevent Colonel Greene's company from utilizing more than 
a small proportion of its plant, and it seems to me that the rights of 
these companies which have not yet begun to actually utilize their 
power, but have expended money with that end in view, are just as 
sacred as the rights of the companies that have actually begun the de- 
livery of power, and I am sure that whatever your conclusion be as to 
your powers, assuming that you have the power to, as I would say, 
arbitrarily limit the amount of water taken from that river, you will 
have due regard to the vested rights of these corporations which 
have made the large investments and have developed power or have 
pnrtially constructed their enterprises. 

Mr. Lawrence. I understand, then, your idea to be that if we act 
along the lines of this bill it would be better for us to specify the 
amount of water that can be diverted, but not go further and specify 
the corporations and the amount that each corporation can use ? 

Mr. Cravath. I am speaking for no one except myself, but my 
view would be the fairer legislation would be to place the limit and 
then let the interested persons determine among themselves, with the 
aid of the courts of New York, if necessary, wliat division should 
be made of the water up to the limit allowed. 

The Chairman. Do you think that would be possible, Mr. Cra- 
vath % 

Mr. DovENER. How would you do that? 

Mr. Cravath. That is hard to answer, but so far as you have power 
to pass a regulation your duty would be ended, if you enforced that 
regulation. 

The Chairman. To return to that proposed ship canal around 
Niagara, sujopose Congress should contemplate such a canal at some 
time. A power canal, such as is contemplated, would go over the same 
route and might be so located that probably the sliip canal would 
have to cross it at great difficulty and,, perhaps, at great expense. 



120 PRESEKVATION OF NIAGARA FALLS 

Would that give any jurisdiction of Congress, could Congress talce 
into account the fact that the proposed canal for the diversion of 
water to create power is liable to be a serious, ])ossibly an insuperable 
barrier, on the line of the most feasible route for a ship canal ? 

Mr. Cravath. You are compelling me to think out loud, Mr. Chair- 
man. There are a great many subjects I am not familiar with. I 
think I had better not think out loud on that subject. 

Mr. Bede. If you know, or if there is some civil engineer present 
that does know, in case this ship canal is built how much would it 
require — would it require much water? 

The Chairman. I doubt whether that has been computed. There 
would have to be a hydraulic lock at the lower end. The use for 
lo<,'kage would be one of the principal demands. 

Mr. Greene. Will you now hear from Mr. George W. Wickersham, 
representing the purchasers of power- in New York, a class of people 
that have not been heard at all so far ? 

STATEMENT OF GEORGE W. WICKERSHAM, ESQ., COUNSEL, LACK- 
AWANNA STEEL COMPANY. 

Mr. Chairman and gentlemen, without entering into this most 
interesting and somewhat metaphysical discussion as to the limit of 
the powers of Congress, I want to call to the attention of the com- 
mittee the position of my particular client, which is the Ijackawanna 
Steel Company. Some five years ago tiie LackaAvanna Iron and Sieel 
Company, then established at Scranton, Pa., looked about for a suit- 
able site for the development of its industry. It selected a tract of 
land some 10 miles outside of the center of the city of Buffalo, on' the 
shores of Lake Erie, having in mind particularly the development of 
the power possibilities of Niagara liivcr, and established there, in- 
corporating for the purpose a company under the laws of the State of 
New York, a very large modern steel producing plant. Up to the 
present time that corporation represents an actual investment in 
money upwards of $00,000,000. represented by stocks and bonds in 
the hands of the public, and of that I think it is safe to say — although 
I have not the exact figures — about $40,000,000 has been invested 
right there near Buffalo. They have created a traffic on the Great 
Lakes that I suppose is certainly equal to that of any one agency of 
traffic there. 

The raw material, the raw products that come to them over the 
L akes, amount to about 2,000,000 tons annually, and they ship out 
about 175,000 tons of finished products by the Lakes. Their present 
output of finished product is about a million tons per annum, repre- 
senting approximately $;^)0.000.000 value per annum. At present 
the.Y are utilizing about 0,000 horsepower, generated up to the present 
time by their own power plant. After a prolonged negotiation a 
few months ago they closed a contract with Mr. Cravath's client, the 
Lockport company, for the delivery to them on the 1st of July next 
of 5.000 horsepower additional — electric power — with the right to 
call upon that company for additional power up to 10,000 horsejiower. 
And I may say that their needs arc such that they can not get that 
power one day too soon, and that every day after the 1st day of July 
that they are prevented from getting that power will represent an 
actual pecuniary loss to that company. 



PEESERVATION OF NIAGARA FALLS. 121 

Now, out of the void comes this proposed legislation. 

Mr. Lester. Whom did you say that contract was made with? 

Mr. WiCKERSHAM. That contract was made between the Lacka- 
wanna Steel Company and Mr. Cravath's company, which derives its 
power from the company which Mr. Locke represents here. 

Mr. DovENER. I understood him to say that contract was for 2,000 
horsepower. 

Mr. WiCKERSHAM. No ; you are mistaken, sir. If we can not get 
that horsepower, we can not get that energy. We have to use our 
own power plant, and we can not do it in less than a year under most 
favorable circumstances before the first unit can be put in, probably. 
A delay of a year means a pecuniary loss that I have no means of 
calcidating, but it means more than that, because if we can not get 
that power, that additional power there, it means that the future 
development of that plant at that point is going to be checked, and 
that we have got to look around and find some other and better site 
where we can get power, and it means just that much commerce di- 
verted from that point, and these are things you have to bear in mind 
when you come to consider and balance the ethics of this aspect of 
the question against the trade and commerce of western New York. 

Mr. Davidson. Did you not consider all that before you located ? 

Mr. WiCKERSHAM. We did not; we did not have the slightest idea 
of such a thing as this, and I do not think any human being thought 
there was any possibility of Congress endeavoring to exercise any 
authority over the Niagara River in this respect. 

Mr. Davidson. You did not, when you located the plant, expect to 
get power? 

Mr. WiCKERSHAM. Yes ; and that is one of the reasons we located 
there, because we foresaw the development of electric power. 

Mr. Davidson. You constructed your own power plant? 

Mr. AViCKERSHAM. Yes; and we have always to maintain a certain 
power plant of our own. As I have said, that is just one-half of the 
minimum requirement at the present time and one-third of our 
ultimate requirements. 

Mr. Davidson. I would like to ask a personal question which you 
need not answer if you do not care to. I would like to know the 
difference in cost to your plant between having that power and not 
having it? 

Mr. WiCKERSHAM. The cost of establishing the new power plant 
is estimated to be about $100 for a single horsepower — that is, for a 
5,000 electric horsepower plant about $500,000, and the time of con- 
struction would be about one year. The estimated amount of coal 
required to operate the steel plant on the basis of generating our own 
power is about 27,000 tons of steam coal per month and 33,000 tons of 
gas coal per month, making a total of 60,000 tons per month, or 
720,000 tons per annum; and the average cost of transporting that 
coal from the coal fields from which it is drawn to West Seneca is 
about $1.25 a ton. The estimated minimum saving by using the elec- 
tric power drawn from the sources contemplated under this contract 
is from 20 to 25 per cent on the amount of power. Therefore you can 
see that that is a very material factor. 

As I said before, it is not my purpose to enter into a discussion of 
these interesting legal questions involved as to the precise limits of 



122 PEESERVATION OF NIAGARA FALLS. 

the power of Congress, but it is pertinent to draw your attention to 
these facts and to the position of this company and to the effect upon 
it, and upon the commerce of western New York and of the Great 
Lakes of this contemplated legishition which proposes to impose an 
embargo npon the transmission of power which makes it impossible 
to carry out these contracts. 

Mr. Humphreys. Is the reduced price of power j^ou use there 
reflected in the selling price o^ your finished product ? 

Mr. WiCKERSHAM. I am not connected with the sales department 
and I can not tell you. 

The Chairman. Mr. Wickersham, of course we would all like to 
have you enjoy the use of this power, bu^ have you made any calcu- 
lation of the result in case all companies within the radius in which 
that power can be utilized obtain their power from Niagara River? 

Mr. Wickersham. I do not quite understand what result you mean. 

The Chairman. The amount of water which would be used, pro- 
vided all the companies Vvithin the radius of 200 miles from Niagara 
River used power derived from it. 

Mr. AYickersham. I say frankly my only knowledge on the subject 
has been acquired within the last twenty-four hours by a j^erusal of 
the printed documents before this committee. The whole subject 
came to me out of a clear sky about forty-eight hours ago, and since 
that time, while I have been diligent in the perusal of infonnation 
upon the subject, my time has not allowed me to very fully inform 
myself or to go outside the records that have been before this com- 
mittee. 

The Chairman. Suppose the water taken would not only seriously 
impair but threaten to destroy the scenic grandeur of Niagara Falls, 
in weighing the advantages of the two, the industrial value and the 
value of the falls as a great spectacle, to which side do you say this 
committee ought to lean ? 

Mr. Wickersham. With my imperfect knowledge of constitutional 
law, I am under the impression that Congress is not charged with 
either the duty or power to legislate for the scenic beauty. 

The Chairman. We spent a good deal of money for Yellowstone 
Park. 

Mr. Wickersham. No; I beg your pardon. The Government of 
the United States reserved to itself out of its territory a large tract 
of land as a national park, and, of course, originally being territory 
of the United States and being reserved to itself as a j^ark, it pos- 
sesses all power over it; it is the owner of the fee and it is the sover- 
eign of the soil. 

Mr. Bede. If we owned, as a nation, riparian rights on the Niagara 
River 

Mr. Wickersham. But you do not OAvn it. 

Mr. Bede. No. 

The Chairman. You say that Congress should let this problem 
alone ? 

Mr. Wickersham. I do not say that, Mr. Chairman, but I do say 
that Congress has no power to legislate solely for the scenic preserva- 
tion of Niagara Falls. If you asked me to go a step further and give 
my impression, which of course is very crude, because I have not had 
time to study the subject very much, as I have just told you, I would 
say that in reading over the opinions printed in the documents that 



PRESERVATION OF NIAGARA PALLS. 123 

have appeared before the committee I am struck by the fact that 
every one of the great lawyers who have expressed an opinion comes 
to the conchision that the firmest ground on wliich lie can plant Fed- 
oral consideration of this subject is the treaty-making power. Is not 
that so — that every one of those opinions comes down to that? And 
as a matter of fact, the consideration of this as a regulation of com- 
merce is really a subterfuge. I speak legally; I do not mean in an 
invidious sense. It is really a subterfuge. Congress's attention is 
drawn to it exclusively on the ground of the preservation of the 
scenic beauty of the falls. 

The Chairman. I am not quite so sure of that, Mr. Wickersham. 

Mr. Wickersham. That may not be so, but all I have seen in the 
way of printed documents has referred to that phase. 

The Chairman. I think serious considerations pertaining to navi- 
gation are involved. 

Mr. Wickersham. They do not appear in any of the printed docu- 
ments which seem to have set this matter in motion. They may have 
been brought in afterwards for the purpose of buttressing up the 
proposition of Federal interference, but they were not thought of at 
first. 

Mr. Ellis. From what community of New York do you come? 

Mr. Wickersham, Individually? 

Mr. Ellis. Yes. 

Mr. Wickersham. I live in the city of New York. 

Mr. Ellis. Do you reflect the views, do you think, of the people of 
New York? 

Mr. Wickersham. I would not undertake to say that. I am ex- 
pressing the industrial views of the Lackawanna Steel Company. 

Mr. Ellis. Well, that is frank. 

STATEMENT OF MR. FEANCIS V. GREENE, REPRESENTING THE 
NIAGARA, LOCKPORT AND ONTARIO POWER COMPANY. 

Mr. Greene. Mr. Chairman, through tlie courtesy of your commit- 
tee I have listened to every one of the hearings during the present 
week, and at every hearing it has appeared to me that members of 
the committee asked pertinent, direct questions on tw^o lines: First, 
as to the right of Congress to deal with this matter in the method 
proposed by this bill, and second, as to the effect of diverting a cer- 
tain amount of water — what effect that will have upon the appear- 
ance of the falls. It is on the second branch of your inquiry that I 
have to speak. 

On Monday Mr. Cooper, a very distinguished engineer of New 
York, made the statement to you that 40 per cent of the volume of 
Niagara above the falls could be diverted without changing the 
appearance of the falls to the eye of the ordinary observer. He said 
from 40 to 50 per cent. As I recollect it, you said that you would 
like very much to be enlightened on that— Jike to have some data 
proving that or tending to sustain that contention. 

The Chairman. Yes. 

Mr. Greene. On leaving here after that hearing I telegraphed to 
the chief engineer of our plant, who designed and constructed our 
works, fully described in this volume, which I have sent to every 



124 PRESEKVATION OF NIAGARA FALLS. 

member of the committee. He happens at the moment to be in Utah, 
and I asked him to take a train, and if possible be here at tliis meet- 
ing. The teleoram did not reach him in time t-o come in j^erson, and 
anticipating that that might happen, I asked him several direct ques- 
tions on the line, as I understood them, of the questions you had 
asked, and this morning I have his replies, which 1 will read to you. 
These are from L. L. Nunn, the engineer who designed our works, a 
gentleman known to all the engineering profession as standing at the 
very head of it. [Reading :] 

Provo, Utah, 19th — 
Addressed to me in Washington — 

Tours of the 17th received. I answer that T am unavoidably detained, and 
regret that it is iini)ossible for me to appear personally on Friday. 

The diversion of 60,000 cubic feet per second from Nia;,'ara Falls would not 
change ajipearances. The diverting 40 per cent of the tlow would not mate- 
rially change appearances, except 100 feet on Canadian side, where water is 
very shallow. 

That colored drawing shows where he refers to. It is the shallow 
portion of the fall next to Goat Island, and it also appears in the 
frontisjiiece of these books. 

Mr. Davidson. You say the Canadian fall, 100 feet? 

Mr. Greene. Yes; except 100 feet on the Canadian side, where 
water is very shallow. 

The annual variation is greater than this, and it has no appreciable effect 
on appearances. The greatest rapid variation is more than 40 per cent and is 
caused by change of the wind blowing the waters of Lake Erie east or west, 
and such change is hardly noticeable. 

I might interject to say that Mr. Nunn practically lived at Niagara 
Falls, and his office faced the falls, and he saw it every day during 
the construction of these works. I asked certain further questions, 
to. which he gives this answer : 

The diversion of 12,000 cubic feet per second by the Ontario Power Company 
would not lower the falls more than 3 inches on tlie Canadian side, which could 
not be detected by the eye, and would have no effect on the American falls. 
The effect of diverting 15,000 cubic feet at Gatrick 

That is where the Lockport and Niagara Power Company has the 
right to divert the water 

Ten miles above the falls would be distributed over the entire river and not 
be percejitible. See also Proceedings American Institute, Electrical Engineers, 
volume 24, page 951. 

I think that the diagram on page 12 of his description of the works 
showing the highest monthly mean in ten years is about half a foot 
above the mean level, and the lowest montldy mean in ten years is 
about 1 foot below the mean level. 

The CnAimiAN. Of course I must call vour attention, Mr. Greene, 
to one manifest difficulty. Each one of the companies asking tlie 
right to divert water comes here and states that the amount which it 
desires would not injure the falls. But the trouble is we have a 
plurality of companies, and the real question is. How much depletion 
will be caused by the aggregate of all of them ? 

Mr, Greene. That is precisely the question which I asked him. 
The total diversion by all the companies pending before you is less 
than 40 per cent. 



PEESERVATIOlSr OF NIAGARA FALLS. 125 

The Chairman. This answer contemplates a diversion of 60,000 
cubic feet, but the conclusion of his telegram was in regard to this 
diversion of 9,000 cubic feet for this Lockport, Niagara and Ontario 
Power Company. He says that would not appreciably lower the 
level of the river. 

Mr. Greene. He answers several questions. You have gone back 
to the first question now. 

The Chairman. Sixty thousand, he says. 

Mr. Greene. First, that the diversion of 60,000 cubic feet would 
not change appearances. Second, that the diverting of 40 per cent, 
which is more than all the companies put together Avould take, would 
not materially change the appearance except for 100 feet on the 
Canadian side, where water is very shallow. That is the testimony 
not only of an engineer, but of a man whose office has faced these 
Falls for nearly three years. 

Mr. Davidson. Do you conclude from that, the difference in lan- 
guage used, that 60,000 cubic feet would not interfere with that 100 
feet of the Canadian Falls? 

Mr. Greene. Yes, sir ; I do. 

Mr. Davidson. But if you took 40 per cent it would? 

Mr. Greene. The flow taken, in Colonel Ernst's report, which is the 
highest authority, the average flow is 222,400 cubic feet per second, with 
a minimum flow on a monthly mean of 188,000 cubic feet and a maxi- 
mum flow of 265,000 cubic feet. The difference between the maximum 
and the minimum, which is caused bj^ the wind, is upward of 80,000 cubic 
feet, which is about 40 per cent of the flow, and the testimony is that 
that change which takes place constantl}' between the maximum and 
the minimum is not appreciable to the eye, and that difference is 40 
per cent. 

The Chairman. Do I understand you, then, to say that there is no 
appreciable difference between the highest and the lowest water under 
present conditions ? 

Mr. Greene. I do, sir. I say that absolutely, based upon this 
knowledge, to the casual ordinary observer. I first saw the Falls 
thirty-eight years ago. I am prepared to say that there is no change 
in their appearance between that date and this. I went to Buffalo in 
January, 1904, and during the last twenty-seven months I have been 
at the Falls somewhere between a hundred and a hundred and fifty 
times. To my eye, in those one hundred and fifty visits I have not 
been able to distinguish any difference in the Falls, although during 
that time the high-water flow and the low-water flow has constantly 
occurred, due to the wind. The only change I have ever seen was 
once during the winter, when the thermometer was 30 degrees below 
zero — there was an ice jam which blocked the water very much on 
the American side, but of course that has no bearing on this question. 

Mr. Lawrence. I understand you to say that if all the companies 
diverted all the water they claim the right to divert it would not 
amount to 40 per cent of the flow. Have you calculated just what the 
percentage of the flow of the stream would be if all the companies 
diverted all the water they have the right to divert or claim the right 
to divert? 

Mr. Greene. In Colonel Ernst's report, on page 9, are given the 
corrected figures for what I might call the companies actively under 

p N F— 06 9 



126 PRESERVATION OF NIAGARA FALLS. 

construction, including the second tunnel of the Niagara Falls Power 
Company, concerning which Mr. ^Aliitridge made such an appeal to 
you yesterday. That is given as 00,1)00 cubic feet. In addition to 
that, what is given in that list, there is on the American side the 
general electric proposition, the old Love scheme, which asked for 
17,900 cubic feet, and the Lockport company, which asked for, say, 
9,500 cubic feet. 

The Chairman. That would be somewhat in excess of 80,000 cubic 
feet altogether? 

Mr. DovENER. Eighty-seven thousand three hundred cubic feet. 

Mr. Lawrence. Nearly 90,000 cubic feet. 

Mr. Greene. I think not. On the Canadian side the only one 
which is not given in here which has a right to take water out is the 
Chippewa Eiver, which I consider is absolutely impracticable for 
physical and financial reasons. It comes to about 80,000 cubic feet, 
or substantially 40 per cent of the mean flow. 

The Chairman. Do you say 9,000 or 9,500 for the Lockport com- 
pany 

Mr. Greene (continuing). Well, say 42 or 43 per cent. 

The Chairman. Bear in mind that there is a diversion for the 
drainage canal at Chicago. They have been before us and they want 
14,000 cubic feet. The effect of that may not be to divert quite the 
amount taken away at Chicago from water flowing over the falls, 
but it approaches the full, does it not? 

Mr. Greene. Some hj'-draulic engineers claim that the effect of the 
diversion at Chicago is so slight as to be negligible so far as Niagara 
Falls is concerned. 

The Chairman. If anyone maintains that position we will be glad 
to hear from him. 

Mr. Greene. I think on account of the precipitation and the evap- 
oration — I do not say that it will not be something, but that it will 
not be any considerable factor. 

The Chairman. Then you would assert that only a very small 
share of that water is diverted from going through the Niagara 
River and over the falls. 

Mr. Greene. That is my belief, a small share of it. 

Mr. Laavrence. Then, getting back to the question I asked j^ou, 
adding the amount claimed by the General Electric Company and 
the Lockport to the list on page 9 of the report, it would call for a 
diversion of between 42 and 43 per cent of the flow of water. 

Mr. Greene. About 42 to 43 per cent ; yes, sir. 

Mr. Jones. What effect would that have upon the present low- 
water flow? 

Mr. Greene. The low-water flow is a matter of an hour or two. 
I have never known whether the water Avas high or low. You have 
to have a sharp eye and knowledge of the wind in order to detect it 
at all, and to the eye of the ordinary spectator I maintain that the 
diversion of that amount of water will not seriously change the ap- 
pearance of the falls. iVn ordinary observer would not know it. 

The Chairman. Eeferring to the Chippewa Company, in Canada, 
how much have they a right to divert? You said that was an im- 
practicable project. 

Mr. Greene. It is not specified; but the Chippewa River itself, 
which is a narrow stream, Avould limit that. I should say it w^as a 



PRESERVATION OF NIAGARA FALLS. 127 

small amount, comparatively, that could be taken backward through 
the Chippewa River; but they have got a canal to dig there so long 
from where they take the Avater in the Chippewa River to where they 
get it into Lake Ontario that I do not think the scheme is financially 
feasible. 

The Chairman. "Wliat do you say in regard to this: Are all the 
franchises granted on the Canadian side wdiicli will be granted? Has 
any limit been placed, by legislation or otherwise, to the number of 
privileges to be given over there? 

Mr. Greene. Of course I am not able to speak for the Canadian 
government, sir. I can tell you this, as bearing on it, as essentially 
the attitude of men in Canada at the present moment, and I think 
this may interest the members of the committee. During the last 
two years, particularly during the last six months, the people of 
Ontario, under the authority of the legislature of Ontario, have had 
two commissions investigating this power question — one known as 
the " municiiDal commission," consisting of delegates from every city 
and town within electric radius of Niagara, looking to the possibility 
of these cities and towns combining and building a generating plant 
and building transmission lines so as to get the power distributed at 
cost; the second commission, known as the "hydro-electric commis- 
sion," appointed by the government of Ontario itself, for practically 
the same purpose, to determine whether the government — not the 
municipalities, but the government of the province — should go into 
the power business on its own account in order to furnish power at 
cost. The municipal commission has api:)lied to the commissioners 
at Queen Victoria and Niagara Falls Park, shown on this map, and 
has the ground just above the falls from which the water would have 
to be taken, to know whether they would be granted a franchise to 
take water, and the answer was, emphatically, " No ; we will not 
grant any more franchises to take water." I am not, as I say, au- 
thorized or qualified in any way to speak for the Canadian govern- 
ment, but that is a fact which I know has happened in the last thirty 
days. 

The Chairman. Here is a point : Has it not been the insistence of 
the Canadian authorities that they should be allowed to withdraw a 
quantity of water greater than that withdrawn on the American side 
for the reason that the fall is heavier on their side of the- river — have 
they not insisted upon that? 

Mr. Greene. I must refer you to Colonel Ernst; he has attended 
their meetings and I have not. 

The Chairinian. I would like some information on that. 

(The chairman made an inquiry of Colonel Ernst, sitting at the 
chairman's side, which the stenographer could not hear.) 

Colonel Ernst (replying to the chairman). Not in terms, that I 
know of; they have simply insisted that they had a perfect right to 
give such privileges as they pleased without regard to us. 

The Chairman. Let me call your attention to one point. The 
aggregate amount diverted on the American side, if all these compa- 
nies which you have enumerated are included, would be 54,1^0 cubic 
feet. If that were to be multiplied by 2 you would have 108,200 
cubic feet. 

Mr. Greene. I do not undertake to say that there is not a limit at 
which these falls would be seriously injured by the. diversion of water. 



128 PRESERVATION OF NIAGARA FALLS. 

I am trying to give information which you are constantly asking for, 
to enable you to form a judgment where that limit is. 

Mr. DAvmsoN. If you will, restate it please. 

Mr. Greene. At about 40 per cent the falls will not be seriously in- 
jured by the diversion ; that is average flow. 

Mr. Davidson. Now, will you state the difference between the high 
and low water flow by reason of the wind? 

Mr. Greene. About 40 per cent. 

Mr. Davidson. That 40 per cent is not noticeable to the eye? 

Mr. Greene. No, sir. 

]\l*r. Davidson. If, however, 40 per cent were withdrawn for hy- 
draulic purposes and 40 per cent had been withdrawn by the wind, it 
would make a difference of 80 per cent? 

Mr. Greene. No; the wind affects 40 per cent, or, say, would re- 
duce it doAvn to 188,000. Then — or sa}^ you take out 40 per cent, 
whkh is 80,000 cubic feet. Then you would have 140,000, and less 
than 40 per cent of that would be affected by the wind. 

Mr. Davidson. But it would be 40 per cent of what was left? 

Mr. Greene. Yes. 

Mr. Davidson. What do you say about that? 

Mr. Greene. I say tho^e periods of east wind last for such a brief 
time that you will have difficulty in being there when that happens. 
I don't know the percentage ; it may be 85 or 90 per cent of the days 
of the year those things do not happen; the normal flow is the flow 
during more than three-fourths of the time. 

Mr. Humphreys. I may ha])pen to get there at that time. 

Mr. Greene. It will be a splendid spectacle then. 

Mr. Davidson. That tourist would go away feeling that he had a 
special favor shown him ? 

Mr. Greene. Yes; it would be still the grandest spectacle he could 
see, and it is constantly varying. 

Mr. Humphreys. One gentleman here expressed it that all this 
trouble had been bloAvn up by the winds; that people visiting the 
falls happened to get there when the wind was blowing in such a 
direction that the flow had been decreased, and those people thought 
the falls had been ruined by the power companies taking out the 
water. One gentleman, the president of the Board of Trade of 
Buffalo, said that he had seen it when he would have thought, if he 
did not know it was caused by the wind, that the power companies 
had ruined the falls. 

Mr. Greene. I did not so understand his testimony. He spoke 
about the time, fifty years ago, when somebody had gone across dry 
shod. 

Mr. Hu:mphreys. One gentleman expressed it that the winds had 
blown up all this trouble here; that people visited the falls when the 
winds had blown up that 40 per cent, and they concluded that the 
falls had been ruined by the companies that had taken the water for 
power purposes. 

Mr. Greene. If anybody gave that testimony I should say it was 
hastily" given, without due consideration. 

Mr. Humphreys. I didn't understand your answer to Mr. David- 
son's question exactly. Do you say tliat when the wind blows in a 
certain direction that that takes 80,000 cubic feet away f^gm the 
maximum flow 2 



PRESERVATION OP NIAGARA FALLS. 129 

Mr. Greene. Between the maximum and the minimum I say there 
is a difference of 80,000 cubic feet per second. 

Mr. Humphreys. Well, if the wind blows back that much and the 
stream is then depleted by drawing out 90,000 cubic feet per second 
for these companies, what would you say would be the result then? 
I mean the result on the appearance? 

Mr. Greene. At the lowest water you would see a change, but I 
say you would still see the most sublime waterfall in the world. 

Mr. Humphreys. A change ; and would not the beauty of the falls 
be seriously marred ? 

Mr. Greene. No, sir; it would not. There would be a change — it 
would be a different sight from the maximum flow — but it would 
still be the most sublime waterfall in the world. 

Mr. Davidson. Is not the sublimity in the average mind made up 
largely of the stupendous flow and the volume of sound ? 

Mr. Greene. Even under those conditions you could not hear your- 
self talk if you were near the falls. The volume would still be so 
enormous as to drown the voice. 

Now, Mr. Herschel is a hydraulic engineer, and I am not. I have 
quoted the opinion of Mr. Nunn, and I have asked Mr. Herschel to 
be here, not to speak, but to answer questions, if you desire to ask 
them, in regard to these hydraulic matters. He has been associated 
at the falls for twenty years. 

The Chairman. There are a few questions I would like to ask you. 
What is the prospective development, measured in horsepower, of 
your transmission company? 

Mr. Greene. Of the transmission company? 

The Chairman. Yes. 

Mr. Greene. That is on this side of the river ? 

The Chairman. Yes. 

Mr. Greene. About 200,000 horsepower. The land is bought for 
that much. 

The Chairman. As I understood from Mr. Locke, you already 
have contracts for 40,000 horsepower? 

Mr. Greene. Mr. Cravath stated to you that his client had sold 
power calling for a flat, firm purchase of 15,000 horsepower and an 
option upon the part of the purchaser, which would probably be 
exercised, of 40,000 horsepower. I understood your question to be 
entirely different. 

The Chairman. That is, you contemplate a maximum of how 
much ? 

Mr. Greene. Tw^o hundred thousand horsepower. 

The Chairman. And that you expect to derive from this Ontario 
Power Company? 

Mr. Greene. Partly. 

The Chair:man. And partly from the Lockport, Niagara and On- 
tario Power Company? 

Mr. Greene. Yes, sir. 

The Chairman. For what amount have you construction already 
completed ? 

Mr. Greene. We have construction completed for about 60,000 on 
land capable of carrying constructions for 200,000, the land already 
bought and paid for. 



130 PRESERVATION OP NIAGARA FALLS. 

Mr. Locke. That is the transmission company ? 

]SIr. Greene. That is the transmission company. 

The Chairman. I suppose you have nothing to add to the report 
of the Deep Waterways Commission in regard to the power companies 
on the Canadian side? 

Mr. Greene. No, sir; I think that gives a fair statement of them. 
There are a great many photogi^aphs here and descriptions that 
probably the members of the committee would like to look at. 

The Chairman. Do you understand that the maximum the Cana- 
dian and Niagara Power Company may develop is the product of 
9,500 cubic feet? 

Mr. Greene. Yes, sir. 

The Chairman. And that the Ontario company has a maximum 
of 12,000, not including the Welland River development? 

Mr. Greene. Yes; not including the AVelland River development. 

The Chairman. The Electric Develoj^ment Company's maximum 
is 11,200 cubic feet? 

Mr. Greene. That is my understanding. 

The Chairman. And the Niagara Falls Park Railway Power Com- 
pany 1,500 cubic feet? 

Mr. Greene. Yes, sir. 

The Chairman. Are those all the companies on the Canadian side 
except this Chippewa River development you mentioned? 

Mr. Greene. Yes, sir. 

The Chairman. Do you know of any other companies seeking fran- 
chises on the Canadian side? 

Mr. Greene. None, except this municipal commission, which has 
been refused. 

The Chairman. Refused by what, or by whom? 

Mr. Greene. By the park commissioners who control the water 
front, as riparian owners, for many miles. 

The Chairman. Refused permission by the park commissioners? 

Mr. Greene. Who, as riparian owners, control the water front; 
yes; for many miles. 

The Chairman. Do they have the absolute right to refuse fran- 
chises to development companies? 

Mr. Greene. Yes; on the theory that they are the riparian owners. 

The Chairman. I believe that is all. 

Mr. Greene. That park, if I may say so incidentally, is sustained 
by the contributions of the power companies, who, so far from dese- 
crating the falls, are paying large sums of money to maintain that 
park, which is a great addition to the beauty of the falls. 

The Chairman. How is this maximum fixed in the charters of 
these respective companies — was it a legislative act, or what was it? 

Mr. Greene. In two w\ays. The franchise of the electric develop- 
ment company reads, " enough w^ator to create 125,000 horsepower," 
and the engineers figure that out 11.200 cubic feet. 

The Chairman. That is for the development company? 

Mr. Greene. That is for the development company. The two 
other comjoanies the amount of water is not specifically limited, 
but the plans are subject to the approval of the park commissioners, 
and the plans have been made based upon using the amount of water 
stated in this report. For instance, our head works are all complete 



PEESERVATION OF NIAGARA FALLS. 131 

for 200,000 horsepower, and that can be created by 12,200 cubic feet 
per second. 

The Chairman. This Ontario Power Company is an American 
corporation ? 

Mr. Greene. It derives its charter from Canada, but its ownership 
is entirely American, except a few qualifying shares held in Canada. 

The Chairman. Is there any other company over there owned by 
American cajiital ? 

Mr. Greene. The Canadian and Niagara Falls Power Company; 
the Electric Development Company is owned entirely by Canadian 
capital. 

The Chairman. As far as the room for diverting water and de- 
veloping and creating power is concerned there is an almost un- 
limited opportunity on the Canadian side, is there not? 

Mr. Greene. By no means unlimited. Engineers have reported 
that there are four more sites available, which is far from being 
unlimited, and they have given, I think, a very liberal estimate. I 
do not think I would advise anybody to put any money into three of 
them, because they could not compete in price with those already ex- 
isting, and the fourth one is also more or less open to question. , The 
best sites have been taken. 

The Chairman. This, further, is true, is it not? The capacity 
at these three sites could be materially increased, could it not? 

Mr. Greene. I answer your question no, sir; because the head 
works, the intake works, are finished or begun on plans which do not 
admit of any change. Our intake is finished, the Canadian and 
Niagara Company's intake is finished, and the Canadian Electric De- 
velopment Company's intake is half finished, and they applied last 
winter for permission to double the amount of water and were posi- 
tively refused. 

The Chairman. They would, however, have the space to do that, 
would they not? 

Mr. Greene. No, sir; not without entirely new works on a different 
basis, which Avould cost more than they are worth. 

The Chairman. If they obtain the privilege from this controlling 
park board could they not enlarge their works? 

Mr. Greene. Not to advantage from an engineering or financial 
standpoint ; they are fixed by the plan now. 

The Chairman. But could not other plans be adopted and other 
space utilized? 

Mr. Greene. It would amount to the creation of an entirely new 
plant. 

The Chair:man. And they would have to obtain that from this 
park commission? 

Mr. Greene. Yes. 

The Chairman. They could, however, if they did obtain it from 
this park commission, "develop much more water power, could they 
not? 

Mr. Greene. Not in connection with their present plans; it would 
have to be an entirely new plan. 

The Chairman. Practically by the side of the present one? 

Mr. Greene. Yes, sir; but it would be an entirely new proposition, 
and I would like to remind you of the town cases in which the park 



132 PRESERVATION OF NIAGARA FALLS. 

commissioners have refused applications for more water, both of which 
have occurred within a year. One was the Electric Development 
Company, which asked to do what you have suggested, to develop 
their intake, and it was refused ; and the other was frbm the munici- 
palities, who within thirty days asked for a site and were refused. 
I think that indicates as far as it can, as far as anything that has 
definitely happened, the attitude of the Canadian authorities. 

The Chairman. Do you know of this movement for municipal de- 
velopment and electric light ? ^Ve have heard of that more or less in 
the newspapers. Are you familiar with that movement? 

Mr. Greene. No, sir. 

The Chairman. And what the probable result will be? 

Mr. Greene. You mean the cities buying over the gas and light 
companies? 

The Chairman. Providing electric plants and obtaining the power 
for them from the falls. 

Mr. Greene. I don't know of any such movement on this side of 
the river. 

The Chairman. On the Canadian side is what I refer to. You say 
that these park commissioners have refused permission for that? 

Mr. Greene. The park commissioners have refused permits, yes, 
to take water for that ]:)iirpose. 

If I do not tax your time too much, I would like to convey to the 
committee some idea of the magnitude of horsepower to be created 
by anything like 40 per cent of the waters of Niagara Falls. The 
minimum horsepower created by a cubic foot cyf water of any com- 
pany is about 10. We are more favorably sit*jated; we get about 
16^7 horsepower for every cubic foot of water. 

The Lockport Company, if it should build its canal, would get 
something over 20 horsepower for every cubic foot, and the General 
Electric proposition, which you heard on Monday, would get about 
24, I think. Of the com])anies which are building, the average is 
somewhere about 12^ to 13 horsepower per cubic foot per second of 
water. Eighty thousand cubic feet of water, or 40 per cent of the 
falls, would make nearly a million horsepower. It is going to be a 
long time before there will be a demand for a million horsepower, a 
long time. Here is the greatest individual steel plant in the world 
represented by Mr. Wickersham, absolutely the largest steel plant in 
the world. They only take 10,000 cubic feet. We have sold to the 
trolley company of Syracuse, and they only want 5,000 for all the 
trolleys in Syracuse. The trolley lines of Rochester do not need over 
about 3,000 cubic feet. The trolley lines in the vicinity of the falls 
at the present minute consume, I think, somewhere along about 10,000 
or 11,000, including Buiralo. The whole Niagara frontier, 40 miles 
long and out to Lockwood, would have to be developed a great deal 
before you would get to 300,000 horsepower — that is, 300,000 horse- 
power would mean a great development there, and 200,000 or 300,000 
horsepower means only 20,000 or 30.000 cubic feet of water. 

The Chairman. If you could have figures prepared concerning 
prospective demands for power within a radius of 200 miles, say, of 
the falls, they would be of assistance to us. I think you may find 
some valuable material, perhaj^s, for getting up such data in some of 
the census reports. 



PEESERVATION OF NIAGARA FALLS. 133 

Mr. Greene. I can give you a few statements as to that imme- 
diately. 

The Chairman. Perhaps it would be better to tabulate it. 

Mr. Greene. I was about to say that Buffalo requires about 35,000 
horsepower, and Rochester 18,000 horsepower. 

The Chairman. One other question I wanted to ask you. Does 
this Canadian Niagara Power Company contemplate transmission of 
power into the United States? 

Mr. Greene. They are transporting power into the United States 
at this minute. If you will refer to the map you will see their plant 
on the Canadian side. It is connected by cables running over the 
bridge with their plant on this side, and they can at this moment 
send about 40,000 to 50,000 horse])ower over that bridge. They are 
also building actively a transmission line to Fort Erie, and they are 
crossing the Niagara Iliver on towers 150 feet high and coming into 
Buffalo. So they have one line in use to bring power into the United 
States at this minute, and another one in contemplation. 

The Chairman. Has the other company, the electric development 
company, which you say is supported by Canadian capital, any con- 
tracts for the transmission of power into the United States? 

Mr. Greene. Mr. Dudley spoke for them on Tuesday, and I under- 
stood he said they had. 

The Chairman. That was the company he represented? 

Mr. Greene. Yes ; I have no knowledge of their affairs except what 
he stated. 

Mr. Davidson. Is the ownership of the Niagara Falls Company and 
the Ontario Power Company practically the same ? 

Mr. Greene. Not at all. 

Mr. Davidson. I thought you referred to them as being practically 
the same. 

Mr. Greene. I said the Niagara Falls Company in New York and 
the Canadian Niagara Power Company. 

Mr. Davidson. That is what I meant. 

Mr. Greene. You just asked me about the Ontario Power Company. 

Mr. Davidson. I mean to say are the Canadian and Niagara Power 
Company and the Niagara Falls Power Company practically tfhe 
same ? 

Mr. Greene. Yes. 

Mr. Davidson. I want to ask you about those Canadian park com- 
missioners and that refusal of a request to give additional permission 
to divert water for power. Was that a matter of discretion with the 
commissioners ? 

Mr. Greene. Yes. 

Mr. Davidson. And if they were changed at any time the other 
men occupying those positions could grant the privilege if they 
desired? 

Mr. Greene. I suppose they could change their will as frequently 
as Congress can, no more or no less. 

Mr. Davidson. And likely to do so if the pressure was equally as 
great ? 

Mr. Greene. I think hardly as likely, if I may say so without 
offense. 

Mr. Davidson. Would they reflect public policy or public Qpinion 
as clearly as Congress would? 



134 PEESERVATION OF NIAGAEA PALLS. 

Mr. Greene. Yes; they are the creatures of the Ontario govern- 
ment. Ontario is a province in the Dominion of Canada, and the 
park commissioners are appointed under an act of the legislature of 
Ontario and act under the direction of the so-called " lieutenant- 
governor in council," and what they do has to meet the approval of 
the lieutenant-governor in council before it is valid. 

Mr. Davidson. You mean that their action reflects the opinion of 
the controlling power — the administration? 

Mr. Greene. I think there is no more accurate reflection of public 
opinion in Canada than the acts of those park commissioners, be- 
cause they are subject to removal by the lieutenant-governor, and 
they act under his direction, and the lieutenant-governor is elected 
^y popular vote. 

Mr. BuROESS. I would like to ask you how many miles above the 
crest of these falls is the intake of your works ? 

Mr. Greene. The Canadian works, G,100 feet. The water which 
goes into our works can by no possibility, if we do not take it, get 
ynto the American Falls. It is on the other side of the river and just 
at the beginning of the rapids. 

Mr. Bede. Does the Dominion government claim any authority 
there, or leave it entirely to the province? 

Mr. Greene. There is a dual authority. AVe derive our charter in 
Canada from the Dominion government, a special charter, which 
has distinctly given us the right to bring electricity to the inter- 
national boundary for the purpose of transmitting it to the United 
States. That was the most attractive feature of the charter when the 
present owners took hold of it. The Ontario government — the Prov- 
ince of Ontario — exercised authority, I might say, analogous to that 
of a State. It is not absolutely supreme, but it regulates local mat- 
ters, and it owns this power. 

Mr. Bede. I wanted to get at how a treaty between this Govern- 
ment and. the Dominion government would reach this point. 

Mr. Greene. If I may make a suggestion on that without being 
indiscreet — of course your treaty must be made with Great Britain; 
but I think no treaty will ever go through that is not negotiated by 
Canadians. 

The Chairman. "We have been somewhat familiar with the delay 
that occurs in negotiations a fleeting Canada in the action upon the 
provision in the river and harbor act of 1902 appointing this inter- 
national waterways commission. It was nearly three years after the 
act was passed before any action was taken upon it. 

Mr. Alexander. I think Colonel Ernst understands that much of 
that delay, or a good part of that delay, was due to overlooking the 
papers which were finally found in a pigeonhole, after referring the 
matter to Ambassador Choate for the third time. The Parliament 
of Canada found them in a pigeonhole. 

The Chairman. They might find another pigeonhole. 

One question about the right to transmit electric power in New 
York. Is that grant by special act of the legislature, or is there 
a possibility of incorporating for that ]:)urpose under general hiAV? 

Mr. Greene. Both. The Niagara, Lockj^ort and Ontario Com- 
pany's charter distinctly provides for the transmission of electricity, 
but the peculiar feature of that charter is that it grants the right of 
eminent domain. 



PEESERVATION OF NIAGARA FALLS. 135 

The Chairman. Which you would be compelled to have if you 
should go as far as Syracuse, for instance? 

Mr. Greene. Yes; practically. Mr. Dudley's company, on the 
contrary, is incorporated under the general corporation law, and I 
believe he expects to get his right of way by building a railroad as 
an incident and putting his powers on the railroad line. 

The Chairman. So there may be a plurality of companies, com- 
panies which come under the general incorporation law as well as 
under sj^ecial acts ? 

Mr. Greene. Unless you kill them; yes. 

STATEMENT OF MR. CLEMENS HERSCIIEL, CONSULTING ENGI- 
NEER, NIAGARA FALLS HYDRAULIC POWER AND MANUFAC- 
TURING COMPANY. 

The Chairman. You have been quoted, I believe, once or twice. 
If you desire to address the committee we shall be glad to hear you, 
or do you appear simply to answer inquiries ? 

Mr. Herschel. Only to answer inquiries. 

The Chairman. What do you say about the quantity that can be 
taken from the river without interfering with the scenic grandeur 
of the falls? 

Mr. Herschel. Well, grandeur is a term that is capable of a great 
many meanings. For myself, I do not know why a cataract of 
111,000 cubic feet does not contribute as much scenic grandeur as one 
of 222.000 cubic feet._ I should be satisfied with one of 111,000 cubic 
feet per second pouring over a fall of about 200 feet in height. I 
don't knoAV any other that is more grand. 

The Chairman. How do you determine what the result will be of 
the reduction of the flow ? Do you know the contour of the crest on 
the two sides? 

Mr. Herschel. I have known Niagara Falls in a professional way 
for the last twenty-three years. I think I have done work up there 
for eveiy company that is there, unless it be the last two on the 
Canadian side. I can not say how many times I have been there. 
I have made it a subject of studj' during all these years and have 
made a number of computations. I know, I presume, about as much 
about the shape of the crest of those two falls, the American and the 
Horseshoe, as anybody does. 

The Chairman. Well, do you know what the contour is? 

Mr. Herschel. No; I do not. No man knows. No absolute sur- 
vey as to depth of waters has ever been made. But if you take the 
American Falls and consider it a body of water uniformly 4 feet deep 
flowing over it, you will have made no violent assumption with respect 
to the truth; and if you consider Horseshoe Falls a body of water 
with a depth of 14 feet, you will have made a fair approximation in 
that case to the truth. I can tell you what the 14-foot measure is 
based on. There was a time once when as' a spectacle a schooner was 
allowed to go over the falls. That was in the fifties, I think. That 
vessel drew 14 feet and slid over without touching. So it may be 
safely asserted that it is 14 feet in depth there. 

The Chairman. Is the depth uniform from side to side? Is there 
not a greater depth in the center than at the two sides ? 



136 PRESERVATION OP NIAGARA FALLS. 

Mr. Herschel. ]\Iost certainly ; but 14 feet is a fair representation 
of that falls. 

The Chairman. "\Miat do you mean, an average? 

Mr. Herschel. Yes; an average of the main body of water. 

The Chairman. Is not the question of the preservation of the 
scenic beauty of the falls dependent very largely on that contour? 
It may be 20 or 25 feet deep in the center and then diminish gradually 
to a less depth on each side. If there is that variation in the depth, 
would it not greatly diminish the width of the fall and affect its 
appearance if any considerable percentage of the volume of water 
were diverted ? 

Mr. Herschel. So far as the width ^oes, I do not think it would 
materially affect it. Where the terrapin tower used to stand there 
are small streams of water trickling over, and of course those would 
be affected ; and it is the same way on the Canadian side. There are 
some shallow streams near the shore, but still the Horseshoe is fairly 
spoken of as being 14 feet deep. 

The Chairman. Have you any means of knowing what the depth 
is, say 100 feet from the respective sides ? 

Mr. Herschel. No; I have not, except judgment. 

The Chairman. This is the question that does not seem clear to me. 
Can anyone who does not know the respective depths of water at 
different points from side to side, who can not tell whether it is 15 
feet in the center or 25 or 30 feet, make any accurate forecast of what 
the result would be of withdrawing half the water ? 

Mr. Herschel. He can make a reasonable forecast. We do not 
any of us know how much this earth weighs, and yet the weight of 
this earth is an important element in calculations, and is used daily, 
and millions of money are dependent upon the closeness of that esti- 
mate of the weight. In the same way we need not talk wildly about 
those falls, if we use a little reason. Engineers measure the cross 
sections of rivers, and although one river differs from another river, 
yet general laws affect them and general shapes are followed out, and 
the water flowing over there is not beyond reason or nature. The 
question that comes up in regard to it is this : If 5,000 cubic feet per 
second were taken out of that river, how would it affect those two 
falls? 

I can not answer that question down to the thousandth of a foot of 
measure, which is as close as we measure any water flow, but I can 
answer it sufficiently accurately for the purposes of this or any 
other ordinary investigation. 

The Chairman. If you do not know the depth in the center, and 
do not know the contour of the bottom there, how can you come within 
rods of it? 

Mr, Herschel. If you can not see after what I have just stated 
that I can give you a reasonable answer to that question I am afraid 
I can not prove it. 

The Chairman. I am frank to say that if you do not know the 
contour of the bottom of the falls at all, whether the maximum 
depth of the fall is 20 or 30 or 40 feet, and you do not know whether 
it is nearly uniform across or not, possibly you can demonstrate the 
problem to your own satisfaction, but I really am lacking in that 

Eerception which enables me to see how you can demonstrate to any- 
ody else what effect it will have to take out half the water. 



PEESERVATION" OF NIAGARA FALLS. 137 

Mr. Herschel. I have been asked that question by people who do 
think I can answer, and it may require a little faith. 

The Chairman. 1 think it is mostly faith. 

Mr. Lawrence. I would suggest that you go on and answer it. 
Show us how you arrive at your conclusion. 

Mr. Herschel. It does not make much difference whether there is 
a peak in there in the crest which lets through an amount of water, 
which compared with the bulk of it is immaterial; it does not make 
any difference whether it is there or is not there; but, responding to 
the inquiry, I will tell you the result "tind how I have arrived at it. 
I will not undertake to judge of anybody else's results until I know 
how he has arrived at them, and so I will tell you how I have arrived 
at my own results, in order that you may judge about theni. 

Anybody that knows the American Falls knows that it is almost 
level across there. The bottom of the river is nothing but a rift of 
rock in horizontal layers, and you can see that that thing is practically 
horizontal across there. It doesn't make any difference whether there 
are little depressions there or not, that American Falls has a certain 
length and in ordinary stages of the river it is about 4 feet deep. 
Now, within as close as 10 per cent we certainly can say how much 
water is going over that falls. It Avould be classed, using engineer- 
ing terms, as a weir Avhose downstream discharge is extended by a 
spout. In other words, instead of being a weir with a sharp edge like 
this [indicating with a piece of paper], it is a wei-r with a flat surface, 
like this [indicating]. I made that computation, and that American 
Fall discharges about 222,000 or 223.000 cubic feet per second. We 
know, from measurement of the Niagara River up at Black Rock, 
what the total discharge of the river is, and it thus turns out that the 
discharge of the fall is about one-eleventh, or one-twelfth, possibly, 
of the discharge of the whole river. 

Now, assuming that the American Falls has that width — I don't 
remember what it is — and that the sheet of water on it is 4 feet thick, 
if you take 5,000 out of it, and you take one-eleventh or one-twelfth 
of it from the American FallsJ it will affect that water fall five- 
eighths of an inch. If you take what is left of the 5,000 feet out of 
the Horseshoe Falls — and you must assume that to be 14 feet thick, 
an average of 14 feet thick — it will take out of that water fall 2i 
inches in depth. That would not quite hold true for the next 5,000 
and the next 5,000, and so on; it will be a little greater; but after 
these computations are made, JMr. Chairman, we are no longer wild 
guessers; apart from the fact that we have a judgment on such 
matters, that judgment is backed by these computations, and you 
may accept those computations for present purposes; they are a 
great deal better than nothing at all, or than guesses. They are — I 
won't say precise, because in the nature things you can not 
make a precise computation of a thing like that, but you can make 
one near enough to judge by and to be safely guided by, and as such 
I present it. 

The Chairman. Wliat I don't quile understand is this: How a 
calculation which applies to a crest which is straight across could 
at all apply to another which is irregular and concerning which you 
say you do not know whether it is 25 or 30 feet in the center. It 
would seem to me that the most accurate computation would require 
radically different calculations in those two cases. Do I understand 



138 PRESERVATION OP NIAGARA PALLS. 

you that to take away half the flow of the falls would not diminish 
the width on the Canadian side? 

Mr. Herschel. I have not said so. 

The CiiAiRiiAN. What do you say ? 

Mr. PIerschel. I say the shoal water on each side would be affected, 
and as to the main body of the stream, the computation would not be 
any different whether that middle i)eak was 25 feet deep or whether 
it was uniformly 14 feet across, not enough difference so you would 
speak of it here. 

The Chairman. "Wliat woidd be the amount by which the depth on 
the Canadian side would be lowered, suppose one-half the present 
water went over it? 

Mr. Herschel. Oh, there would remain something like two-thirds 
of the depth. 

'Ihe Chairman. You say the depth would then be two-thirds the 
present depth ? 

Mr. Herschel. No; I do not say two-thirds; I say about two- 
thirds — which in my mind is very different. 

The Chairman. To what extent would the width be affected? 

Mr. Herschel. I could not say. 

Mr. Bede. Does not the maximum and minimum flow help you to 
estimate what changes would be made in the width? 

Mr. Herschel. The appearance, you mean ? 

Mr. Bede. Yes; does that change it very much when you have a 
minimum flow ? 

Mr. Herschel. No; it does not. I am accustomed to look at that 
water fall with critical and observant eyes, and there are certain land- 
marks there which I cast my eyes over, and I say to myself the river 
is high or the river is low, but there is not one man in a hundred 
thousand or a million that has that same view; nobody except those 
whose business leads them to watch for such things ever sees them. 

Mr. Jones. Could you detect the difference except by reference to 
those landmarks? 

Mr. Herschel. I could not. 

Mr. Burgess. Assuming that the water is 4 feet deep on the crest 
on the American side and 14 feet deep on the Canadian Falls; assum- 
ing that you take out 40 per cent at those various plants; will the 
effect be to reduce the depth at the crest 40 per cent; and if not, how 
much ? 

Mr. Herschel. It will be somewhnt less. I replied as to taking 
out one-half the water that it would take off about one-third the 
depth. I give you that as my judgment; that is by view, with no 
computation about it. 

Mr. Burgess. Have you any formula known to your profession by 
which you could calculate what proportion the reduction of the depth 
would be over those falls by this diversion of 40 ]ier cent of the water? 

Mr. Herschel. We have formula? which will guide our judgment 
in this respect, which will keep us from going wild in either direction. 
It is not a matter that can be compr:t xl with precision, but it can be 
computed with sufficient accuracy, I think, for our purposes. 

The Chairman. "VA^iat formulae do you use? 

Mr. Herschel. I would not undej-iake to say which one I would 
use. 

The Chairman. There are several? 



PRESERVATION OF NIAGARA FALLS. 139 

Mr. Herschel. I would want to compare several. 

The Chairman. AA^iich are some of them ? 

ISIr. Herschel. Well, experiments on the class of weirs such as I 
have mentioned here, the best ones are published in French by Les- 
bros. Those are the ones that more nearly meet this case, I think, 
than any others, as I now view it. Of course I would want to con- 
sult books, the same as our sixteen lawyer friends on the committee 
would want to consult books before answering a question in their line. 

The Chairman. How are those formula? made up? 

Mr. Herschel. They are based on experiment entirely. 

Mr. Lawrence. Then we are to understand that the result of 
your study and observation is-that 50 per cent of the quantity of the 
stream can be diverted witliout seriously marring the beauty of the 
fall? 

Mr. Herschel. Yes ; I should say that. 

Mr. Ellis. What effect would that diversion and the reduction of 
the amount of water flowing over there have on the erosion of the 
falls? 

Mr. Herschel. It would diminish it very much. 

Mr. Ellis. The preservation of the falls? 

Mr. Herschel. It would diminish the erosion. 

Mr. Ellis. Is the amount of water going over there now mate- 
rially affecting it? 

Mr. Herschel. Oh, yes; those falls travel upstream a great deal 
faster than is generally supposed. I haven't the figures in my mind, 
but it is not less than 2| feet, and I think it is 4 feet, per annum. 

Mr. Sparkman. Do those plans altogether, as a whole, undertake 
to regulate the relative amount of water that is taken from each ? 

Mr. Herschel. No, sir; they can not do that. That water will 
flow as led. You invite it to go anywhere and it goes; it depends on 
the intake works. 

Mr. Spark]man. I suppose that that could be done, that it is within 
engineering skill to regulate the proportion of water taken from the 
American Falls and the proportion taken from the Horseshoe Falls? 

Mr. Herschel. Yes ; you could build a wing dam. 

Mr. Sparkman. My question was as to whether the plan taken al- 
together contemplated the proper division of the water? 

Mr. Herschel. I have never heard of any such plan. I would 
like to answer the question put by a member of the committee in refer- 
ence to one canal crossing the other. There is no difficulty about 
that. A power canal can cross a navigation canal very easily. In 
fact, I built one myself; there is nothing to it; the power water goes 
right under the navigation w^ater. 

The Chairman. The pipe is underneath? 

Mr. Herschel. Yes; it goes under by a siphon. 

Mr. Davidson. Have you ever made anv measurements of the depth 
of the Horseshoe Falls from the Goat Island side? 

Mr. Herschel. I have never made any measurements; I have seen 
the thing. 

Mr. Davidson. How deep is it ? 

Mr. Herschel. It is shallow in the vicinity of terrapin tower. 
There are some little streams there that ax'e very shallow, that do not 
amount to anything. 



140 PRESEEVATION OE NIAGARA FALLS. 

Mr. Davidson. For the first hundred feet there the water is not 
more than a few feet deep? 

Mr. Herschel. No, sir. 

Mr. Davidson. And the second hundred feet; how deep would 
it be? 

Mr. Herschel. Oh, well, I haven't been there for a good many 
years, and I would not want to answer that now. 

Mr. Davidson. I wanted to have some idea as to how much nar- 
rower the flow of water Avould be with the diversion of water spoken 
of? 

Mr. Herschel. It would be immaterial, I think; not appreciable. 

Mr. Davidson. If you took off 50 per cent of the water, which you 
say would take oif one-third of the depth, you would then take off 
100 feet there and make that much dry, would you not? 

Mr. Herschel. I would not say. I would want to make a special 
study of it before I would give an opinion in feet and inches. 

Mr. Lawrence. How much of the width could be cut off, in your 
judgment, without marring the scenic beauty of Horseshoe Falls? 

Mr. Herschel. Call it 150 feet on each side or 200 feet on each 
side. 

The Chairman. Two hundred feet on each side ? 

Mr. Herschel. Yes. That is a matter of opinion. My o^Dinion 
about scenic beauty is no better than anybody else's. 

Mr. Lawrence. But you said that a diversion of 50 per cent of the 
water would take off one-third of the depth. I wanted to know what 
your idea about what scenic beauty was. You think if the falls were 
narrowed up 200 feet on each side it would not interfere with the 
scenic beauty of the falls ? 

Mr. Herschel. I don't think it would at all. 

Mr. Jones. How wide is it there on each side? 

Mr. Herschel. I have always assumed the American Fall to be 
900 feet and the Horseshoe 1,500 feet long. 

Mr. Jones. That is, you mean across tlie river ? 

Mr. Herschel. And I took that from the maps. 

Mr, Jones. So you think to cut it down to 1,300 feet would not 
mar the beauty? 

The Chairman. To cut it down to 1,100 feet, he said. 

Mr. Herschel. I mi^st correct that. This estimate of 1,500 feet 
in width means 1,500 feet of solid water 14 feet thick. In saying 
1,500 feet, I have thrown out, no doubt, as much as 200 feet. 

Mr. Jones. So it is probably 2,000 feet wide from the edge of the 
water to the edge of the water ? 

Mr. Herschel. Yes. 

Mr. Jones. What is the effect of the erosion on the appearance of 
the falls? 

Mr. Herschel. What effect is it now having? 

Mr. Jones. Yes. 

Mr. Herschel. To say anything about that it is necessary to think 
of the falls as they have looked for twenty-five years. The erosion, 
as I said a little while ago, I believe is either 2i feet or 4 feet per 
annum, something like that, and as you go up there from time to 
time it does not seem as though there were the slightest difference, 
but by exercise of the memory, I think I have from time to time seen 
where the peak of the Horseshoe Fall has gone farther upstream and 



1 



PEESERVATION OF NIAGARA FALLS. 141 

changed its shape. It was, according to tradition, at one time a 
perfect horseshoe, a perfectly smooth curve. 

Mr. Jones. Is it affecting the perpendicularity any ? 

Mr. Hersciiel. Not permanently ; it may from time to time. The 
force of the water is such that if any point projects beyond the top 
crest it is soon cut doAvn to the bottom, in fact the whole fall retro- 
grades up stream by undermining from underneath. 

Mr. Alexander. Do you remember the terrapin tower ? 

Mr. Herschel. Yes. 

Mr. Alexander. Was the water in those days flowing over the 
first 100 feet or 150 feet jorojecting out from the tower — ^Avas it flowing 
over that 150 feet more in those days than t is now? 

Mr. Herschel. I haven't been over the site of the terrapin tower, 
I don't suppose, for four or five or six or seven years; but there was 
never much water around the terrapin tower. 

Mr. Alexander. That is not a part of the fall, is it? 

Mr. Herschel. At present? 

Mr. Alexander. It never was. 

Mr. Herschel. Barely so. There were little streams sometimes 
between the terrapin tower and Goat Island, and sometimes a short 
distance beyond. They were not a part of the main fall at all. 

Mr. Alexander. Is there not less water running over there now 
than thirty-five years ago, when you first knew it ? 

Mr. Herschel. Apparently not. I am not able to discover any 
such thing. 

Mr. Ellis. During the time that these works have been con- 
structed — these hydraulic works there, power works — has this ques- 
tion been agitated among the engineers? Have they considered the 
ultimate effect upon the falls of the diversion of water? 

Mr. Herschel. From time to time, about ten years ago, the State 
of New York went through an agitation on the subject. I don't 
remember anything in the last ten years except that. 

Mr. Ellis. How recently, then, have you been called upon to think 
upon this particular question — the effect on the scenic grandeur of 
the falls? 

Mr. Herschel. Within the last few days again. 

Mr, Ellis. It is a matter you have given some thought to? 

Mr. Herschel. Yes ; a great deal in times past, 

STATEMENT OF DEWITT V. D. REILEY, ESQ., COUNSEL, LOWER 
NIAGARA RIVER POWER AND WATER SUPPLY COMPANY.. 

Mr. EisiLEY. Mr. Chairman, I have printed a brief statement of 
facts ill iregaiid to the matter I wish to call to your attention, for the 
ijidividlial members of the committee, which I would like to pass 
^i:ound, because, it contains a map^ 

The Lower- Niagai:a River Power and Water Supply Company is the 
onl;y po-wer compan}^ chartered by the State of New York to take water 
ftom the Niagara River which is prohibited from taking water from 
the river above the falls. The company was chartered in the year 
1902 and was formed for the purpose of developing the power of the 
I'apids, which are commonly called the " Whirlpool RapidsJ' It waia 
JN?— 06 Id 



142 PRESERVATION OF NIAGARA FALLS. 

given the right by the legishitiire of the State of New York to take 
water from the Niagara River beknv the falls at a point outside the 
State reserve of Niagara, to take it through a tunnel, and return that 
water to Niagara River at a certain spot that was spccitied in the 
act. For what purpose that spot was specified I will show you. 
But first I would like to read section 2 of this act incorporating the 
companj^ : 

Such corporation shall have power to construct a tunnel or tunnels, pipe or 
pipes, under the city of Niagara Falls, extendinij from snch point as it may 
select, outside of the land of the State reserve of Niagara on the easterly shore 
of the Niagara Kiver he.'ow the Niagara Falls and between said falls and 
the southern boundary line of lot 29 of the nnle reserve, to such point as it 
may select in lot 29 of the mile reserve, so called. 

You will observe I have on this map, which I have annexed to 
this statement, Avith a blue pencil drawn the location of that tunnel, 
which shows that the power will be taken, that the feasible point for 
the taking of the power will be immediately at the beginning of the 
AYliirlpool Rapids, which is under the steel arch bridge or just above 
it, and through a tunnel cutting across country about a mile and a 
half in extent to the Devils Hole, or lot 20 of the mile reserve. This 
lot 29 of the mile reserve Avas designated by the legislature of vhe 
State of New York as the point for the development of the power of 
this company for the reason that there is where an old creek, known 
as " Bloody' Run,'' emptied its waters, I suppose for hundreds of 
years, over the cliif and gradually wore it away down in the gorg« 
until it created at the foot of the cliff a natural excavation of 12 or 13 
acres, so that the development of this company can be ma<le at that 
point without any cutting away of the gorge of the Niagara Rapids or 
any defacement of it, and it is the only place where that can be done 
between the Shallcroft plant and the village of Lewiston. 

That, in brief, is the statement of the object and purpose of thi's 
corporation. They think that their projected development is in en- 
tire harmony witli the aims of this committee in the ]Dreservation of 
the scenic beauty of the falls. They will add to the scenic beauty of 
the rapids bv displacement and removel of a Raines-law hotel for 
a beautiful power house. They have purchased lot 29 at great ex- 
pense, and they have secured a right of way for their tunnel, and they 
were just on the point of securing land for their intake when this 
bill was introduced which prohibited them from diverting any water 
from the Niagara River. We therefore come before this committee 
believing that the charter and aims of this company were not knoAvn 
to those who framed the bill, and that the bill should be confined in 
its operation to those companies Avhich are authorized to take water 
from above the Niagara Falls. 

Mr. Jokes. How does this bill affect those taking the water out 
below the falls? 

The Chairman. By the terms of the bill this company is clearly 
included, because the Niagara River is mentioned? 

Mr. Reiley. Yes. 

The CHAiiniAN. Is there any limit on the number of cubic feet you 
can take, according to your charter? 

Mr. Rrii.ey. We are limited to 200,000 effective horsepower. 

The Chairman. What is the fall ? 



PRESERVATION OF NIAGARA FALLS. 143 

Mr. Keiley. There is a drop between the point of intake and lot 
29 of about 83 feet. 

The Chairman. How many cubic feet would it require to create 
200,000 horsepower ? 

Mr. Reiley. I don't know that. 

The Chairman. Do you know whether any computation has been 
made ? 

Mr. Eeiley. Yes ; it has been made, but I was unable to get hold of 
the engineer Avho made the computation before coming here. The 
engineer was Air, Walhice Johnson, of Niagara Falls. 

The Chairman. Of course this project is on an entirely different 
footing from the others we have been considering. I do not know 
that it is necessaiy to go any further into it. 

Mr. Reiley. I should like to call the attention of the committee to 
the fact that the point where we are compelled by law to take our 
Avater from the river is below the point where the river has been 
restored to its normal flow by the power companies. All the Avater 
diverted by the present plants restore their water above the point 
where this company takes its water. 

The Chairman. The General Electric Company is to return their 
water at the same point? 

]\Ir. Reiley. Yes ; to lot 29 ; but there is plenty of room for both. 

The Chairman. Where does the Lake Ontario and Niagara PoAver 
Company restore its Avater? 

Mr. Reiley. In Lake Ontario, away beloAA\ 

Mr. Alexander. Is there any naA^igation betAveen the point of in- 
take of the Avater you Avill use and AA-here you restore it? 

Mr. Reiley. No, sir. Captain Webb navigated it once. 

Mr. Davidson. Is there any other proposed diversion below the 
Falls? 

Mr. Reiley. No, sir. this is the only one. 

Mr. Davidson. On either side ? 

Mr. Reiley. I do not think there is any proposed diversion on the 
Canadian side. This is the only one authorized on the American side. 

The Chairman. This is absolutelv the pioneer company on either 
side? 

Mr. Reiley. Yes, sir. 

Mr. Jones (addressing the chairman). Is thert^-any reason why this 
bill should apply to this? 

The Chairman. I do not think Ave ought to give an affirmatiA^e or a 
negative ansAver to that question just noAv. 

Mr. Ellis. Do you concede the jurisdiction of this committee in ref- 
erence to your enterprise ? 

Mr. Reiley. I do not think this enterprise, being on such a very 
different footing from the others, that I ought to enter into that, but 
I Avill be glad to do so if you Avould like me to. 

Mr. Bede. I would like to ask Mr. Greene if the counsel for these 
various corporations haA^e agreed that electricity is not a thing that 
can be taxed, and therefore prohibited from importation. Is that the 
general feeling? If Ave can not tax it, I suppose we could not pro- 
hibit it from importation, as this bill provides ? 

Mr. Greene. I Avill give you a layman's answer. The Secretary of 
the Treasury, during the last eighteen years, has three times been 



144 PRESERVATION OF NIAGARA FALLS. 

asked the question whether there is a duty on electricity, and he has 
replied no. 

Mr. Bede. I understand there is not, but does that mean that we 
could not impose one ? That is the point. 

Mr. Greene. I think the Secretary of the Treasury could not give 
any answer, nor could I. 

Mr. Davidson. I do not suppse you would controvert the propo- 
sition that if the Government wanted to hx a duty on it or stop its 
transmission it could do so? 

Mr. Greene. It would find a way to do so, I imagine, as a layman, 

Mr. Ellis. Supposing it to be conceded that the diversion of this 
water by these power comj^anies is to affect the scenic spectacle, and 
the jurisdiction of Congress to have charge of that matter be con- 
ceded, in your view what would you think of the practicability of pro- 
hibiting the admission or transmission of power from the Canadian 
side into this country as bearing upon that question of diversion — pre- 
venting diversion? 

Mr. Greene. Answering that question as a layman, I do not see 
what power you have got under the constitutional right to regulate 
commerce to call that commerce for another purpose. 

Mr. Ellis. But conceding we have the power to call or make it 
commerce, the point I want to make is this : Would we be promoting 
our ends by preventing the transmission of Canadian power to this 
side? 

Mr. Greene. You would not promote your ends ; you would defeat 
them. 

Mr. Ellis. That is your opinion upon that proposition? 

Mr. Greene. Yes. 

The Chairman. Suppose, General, this power should be created 
by coal or wood or charcoal on the Canadian side and was being 
transmitted into the United States. Would you say there was any 
question about the right to prohibit its introduction or to impose 
charges on the right to introduce it ? 

Mr. Greene. Now, Mr. Chairman, with all respect, you are an 
eminent lawyer, which I am not, and we have brought three lawyers 
here to answer legal questions. Yesterday you took the liberty, Mr. 
Chairman, of questioning a gentleman on things he confessedly did 
not know about, and he answered them in such a way that you 
attempted to and I think succeeded in throwing discredit upon cer- 
tain parts of his testimony. The question you ask me is a legal ques- 
tion, and I think you should let our lawyers answer it. 

The Chairman. Well, I will ask it in another form. Would you 
say the Government. might not exercise such a right? 

Mr. Greene. As a layman I should say that it could not properly 
exercise such a right. 

Mr. Lawrence. And as a layman you would also say that if we did 
exercise such a right we would be defeating our own end? Do you 
mean we would drive American industry to Canada ? 

Mr. Greene. Yes. 

Mr. Lawrence. And that th.e development of power would go on 
there ? 

Mr. Greene. Yes; and vs a commerce committee you would de- 
feat the ends of American commerce and industry, 



PEESERVATIOJST OF NIAGARA FALLS. 145 

The Chairman. Here is the question right here. I might as well 
ask you the direct question. You know as much about it as a lawyer. 
What assurance have you if we seek to limit the diversion of water — 
to place a limit on what can be developed on the American side — that 
there would not be a great development on the Canadian side imme- 
diately following for power to be transmitted to this country ? 

Mr. Greene. I think you would have no right to assume that the 
people of Canada are less interested in the preservation of Niagara 
Falls than you are, and your question does assume that fact. 

The Chairman. Suppose, howev-er, our authority is limited to re- 
striction on this side, and we must take the most effective steps we 
can to prevent the depletion of the water, our authority is limited to 
that power which is developed in the United States or transmitted 
into the United States; suppose that is the fact. Would it not be a 
judicious course to pursue to adopt the most effective measures 
within our power? 

Mr. Greene. In answer to that I would say no one has constituted 
you the guardians of Canada, and that you would have to confine 
yourselves to where your jurisdiction ends. 

The Chairman. I don't exactly see 

Mr. Greene. You are intimating that Canada is going to let all 
the water go into power companies, even after the United States has 
stopped them on this side. I say you have no right to assume that; 
and even if that assumption was correct, you have no right to inter- 
fere with the Canadian rights, if Canada is not willing to join you 
in stopping the destruction of the falls, which I think they are; but 
if not, you have no power to compel them by attempting to interfere 
with their plans; that is, in the matter of bringing their electricity 
in here. 

The Chairman. I do not quite comprehend you on that. We have 
had for many years in this country a protective tariff keeping out 
articles, and I do not hear that we are attempting to regulate ex- 
porting com]3anies by imi^sing that duty. Do you not misapprehend 
the nature of this measure ? It is confessedly temporary, because it is 
only for three years' operation. It seems to be certain that there is a 
present situation which is to be met, something must be done. This 
bill is altogether exceptional in its nature; indeed, I do not recall a 
similar bill the life of which was limited to three years. Do you 
understand that phase of it? 

Mr. Greene. Yes, sir. 

The Chairman. How it is seeking to regulate the affairs of Canada 
I am unable to see. 

Mr. Greene. The drift of your question was, as I understood it, 
that even if you stop taking water out on the American side it could 
still be taken out on the Canadian side 

The Chairman. It might be a check on the use of power over there, 
but it is a check on the development of power for transmission to the 
United States, and how we can abdicate the right to determine Avhat 
shall be brought into this country without abdicating the right to con- 
trol that river, I am unable to see. 

Mr. Greene. Have you ever prohibited the importation of other 
things except by police powers, prohibiting things that are danger- 
ous to health ? 



146 PRESERVATION OF NIAGARA FALLS. 

The Chairman. There have been a great many prohibitions, and it 
seems to me that the right to prohibit in this case clearly exists. 
There may be something in the question raised by Mr. Locke, that it 
should not apply to one locality only, but rather to all localities. I 
should be inclined to think, however, that that was not a valid objec- 
tion. But the question is this: Is the preservation of Niagara Falls 
worthy of attention, or is it not? That is a simple question. Now, 
is it likely that any regulation would be effective if it is made possible 
to continue the depletion upon the other side without any limit? 

Mr, Gree>'e. All your lawyers are agreed upon one thing, and you 
yourself have, I think, acted' on that line — that the best way to pro- 
ceed on this is by treaty. No one disputes your right to proceed by 
treaty. Now, without' attempting to proceed by treaty, you are 
proceeding upon the theory that the people on the other side of the 
river have different views in regard to the preservation of the falls, 
and that you must prevent them from carrying those views into 
eflfect, I say that presumption is not warranted, nor are you author- 
ized to interfere with tlieir plan if it was warranted, 

Mr, Jones, But suppose that were warranted. This is a practical 
question now. Then, would the prohibition of sending their power 
over here stop the diversion of the water on that side ? 

Mr, Greene, I don't think so. 

Mr, Jones, "Why not ? 

Mr. Greene. They would locate all their industries on the other 
side, I think. A power house like this employs very little labor, 
probably 50 or GO or 70 men can run that power house, but the power 
there produced will give employment to possibly 300,000 or 400,000 
men ; those are the industries where the final investment Avill be made. 
Those will go on the other side of the river if you will not let them 
come in. 

Mr, LoRiMER. AVould the cheapness of the power over there offset 
the protective tariff they would have to pay to send their goods across 
the river? You say they would go across the river and get their 
power at a cheaper rate. Then they would sell their goods in this 
country. Is the cheapness of the power an offset to the protective 
tariff they would have to pay? 

Mr, Greene. Well, you drive them from there because you won't 
let them get the power at any price, and, secondly, to answer your 
question, I think the cheapness of the power close to the falls on the 
other side would be sufficient to overcome the present protective 
tariff'. 

Mr. LoRiMER, Let me make a statement and ask you another ques- 
tion. Every industry that I know of in this country that has branch 
factories in Canada has established branches there because of the 
money they will save on the raw material they get close at hand there, 
and on account of the tariff they have to pay to the Canadian gov- 
ernment, and I have not found any insftance where they have gone 
there on account of the cheapness of power, even on rivers where 
power is obtainable. What have you found in that respect? 

Mr. Greene. Because up to the present time you use the power on 
this sicle or bring it in. But if you prohibit the bringing of it in 
then the poAver will be in competition not with hydraulic power on 
this side, but with coal. As pointed out by Mr, Cravath, several of 
his clients have gone to Shawinigan for cheap power. 



PBESERVATION OF NIAGARA FALLS. 147 

Mr. LoRiMER. Do the}^ sell their goods here or there ? 

Mr. Cravath. In Shawinigan chiefly. In industries like the car- 
bide industry and aluminum industry, where electric power is the 
groat item of cost, they can afford to go to Canada for cheap power 
and pay the duty into this country. 

Mr. LoRiJiER. How w^ould it be with steel and iron industries, for 
instance ? 

Mr. Cravath. The duty would be the controlling factor there. 
There are a great many industries where electric power is the great 
item of cost, especially such industries as the carbide and aluminum 
industries. 

(Thereupon, at 1.30 p. m., the committee adjourned until to- 
morrow, Saturday, April 21, 190G, at 10.80 o'clock a. m.) 



Committee on Kivers and Harbors, 

House of Representatives, 

Saturday, April 21, 1906. 
The committee met at 10.30 oV-lock a. m., Hon. Theodore E. Burton 
in the chair. 

The Chairman. Is there anyone here who has already been heard 
who desires to present any further views on the subject? 

Mr. Veile, we would like to hear your views concerning what effect 
the AvithdraAval of water at Chicago for the drainage canal has on the 
flow of Niagara River. 

STATEMENT OF MR. M. A. VEILE, ENGINEER, NIAGARA COUNTY 
IRRIGATION AND WATER SUPPLY COMPANY. 

Mr. Veh.e. It is my understanding that approximately 10,000 
second-feet of water Avill be diverted for the Chicago Drainage Canal. 

The Chahiman. Fourteen thousand feet ultimately. 

Mr. VEiii:. Fourteen thousand feet ultimately. 

The Chair]man. Eiglit thousand feet for Chicago River, 4,000 for 
the Calumet River, and 2,000 feet for a sewer at Thirty-ninth street, 
although they think it possible that the Thirty-ninth street sewer or 
channel may be abandoned after the water flows through the Calumet 
River and the drainage canal. Twelve thousand or 14,000 cubic feet 
is the ultimate amount. 

Mr. Veile. I have considered that the amount of water which is 
used in the Chicago Drainage Canal or any of those systems 
should be charged to the amount that is used for domestic purposes, 
jiud it should not be considered water used for power purposes. That 
water which is taken at Chicago, diverted and used in that way, is 
absolutely essential to the health of several million people. It keeps 
the waters of the lake pure, instead of contaminating them the way 
they have been contaminated in the past, and for that reason we 
have claimed, and still feel, that it should not be considered in con- 
nection with the power developments at Niagara. At the same time 
any water which is diverted in that way is prevented from passing 
over Niagara Falls, as there are two ways in whiali the water can 



148 PRESERVATION OF NIAGARA FALLS. 

get out of the Great Lakes — one over Niagara Falls and the other by 
evaporation. The evaporation depends on the surface exposed to 
the air, and the amount taken out for the Chicago Drainage Canal 
would not make any appreciable difference in the amount which is 
used up in evaporation. So I think that we have to allow that that 
is taken away from the falls, but 

The Chairman. Practically the full amount? 

Mr. Veile. I do not see any other way to charge it up. I would 
like to charge it up to some other source if I could, but I do not see 
any other way to dispose of it. At the same time I think we have to 
consider the almost infinitesimal effect which that water has on the 
falls — which the taking of that water has on the falls. 

The Chairman. Of course one diversion might not have any 
effect 

Mr. Veile. You have to consider the sum of them, of course. 

The Chairman. But the aggregate will have a great effect? 

Mr. Veile. Yes ; the aggregate will have an effect. 

Mr. Jones. You would not consider 14,000 cubic feet per second as 
infinitesimal ? 

Mr. Veile. I would as far as any effect on the appearance of the 
falls is concerned. 

Mr. Jones. But in connection with other diversions ■ 

Mr. Veilt:. As I say, you have to consider the sum of the diver- 
sions and the question of whether the sum of the diversions is not 
well within safe limits or well within any limit which would affect 
the scenic beauty of the falls is a question we have to consider. 

Mr. Davidson. And in making any deductions from the amount 
diverted do you think there should be a consideration of the purpose 
for which the diversion is made? 

Mr. Veile. Yes. The Deep Waterways Commission made a dis- 
tinction as between the water which is used for domestic or naviga- 
tion purposes and water that is used for power purposes. I am sim- 
ply keeping that distinction, and only state that I feel that this 
water should be put on one side and not the other. 

Mr. Bishop. You would consider, then, that Lake Huron and Lake 
Michigan are one basin, and whatever water is drawn from the Chi- 
cago Drainage Canal would be that much less for the St. Clair and 
Detroit rivers? 

Mr. Veile. Whatever is tributary to Niagara Falls should be con- 
sidered as the same basin. It has the same watershed, and should be 
considered the same basin. 

Mr. Burgess. Taking the water that flows through Niagara where 
it is rapid, the quantity taken out from Chicago would not reduce the. 
water in proportion, would it? Is not that the view of the engineers? 

Mr. Veile. I suppose it would reduce the level very little, but you 
would have the same amount of water missing in the Niagara River 
that was taken out for the drainage canal, I suppose, unless the level 
of the Lakes changes — and it is changing; they change from causes 
entirely unknown, but entirely independent of anything we do at the 
falls, or Avhich they do at Chicago. I believe at the present time the 
level is rising. 

Mr. Burgess. I understood from some of the engineers that as you 
get closer to the falls, taking out a given quantity of water has a 
greater effect on the depth of the falls. 



^RESERVATION OP NIAGARA FALLS. 149 

Mr. Veile. The question of where you diverted the water, at what 
point you took away the water above the falls,' would have very little 
effect on the falls; it would make very little difference at what point 
in the Niagara River that water w^as diverted. 

Mr. Burgess. Is that your view ? 

Mr. Veile. Yes; that is, if it is far enough above the falls so that 
you do not take it altogether from one side. If you took it from the 
American side, for instance, below Goat Island, it would divert the 
water altogether from the American Falls. If you take it far enough 
up the stream, you divert it from the entire stream. 

Mr. Jones. I understood Mr. Eandolph, of Chicago, to claim the 
other day that the taking out of this water at Cliicago would have 
very little effect at Niagara. You do not agree with him ? 

Mr. Burgess. And I think that is what Mr. Cooper said, also. 

Mr. Jones. I did not hear Mr. Cooper's statement. 

Mr. Veile. Mr. Cooper said it would have very little effect on the 
falls — that is, it would hardly be appreciable. 

Mr. Jones. You do not agree with Mr. Randolph, of Chicago? 

Mr. Veile. No, sir ; I do not. 

Mr. Jones. It illustrates the mutability of expert testimony. 

The Chairman. Your interpretation of Mr. Cooper's statement is 
not that he thinks the flow over the falls would not be diminished 
by diverting water for the Chicago drainage canal, but that he 
thought it would have no appreciable effect on the scenic view^ of the 
falls? 

Mr. Veile. That is my understanding. 

The Chairman. And your opinion is that the amount diverted for 
the drainage canal is diverted from the flow over the falls ? 

Mr. Veile. Yes, sir. 

The Chairman. Practically the full amount? 

Mr. Veile. I don't know of any other way to consider it. 

Mr. Bede. That is on the ground that the evaporation is the same? 

Mr. Veile. Yes, sir. 

Mr. Bede. The same surface to evaporate from ? 

Mr. Veile. Yes, sir. 

STATEMENT OF HON. JOHN W. GRIGGS, EX-ATTORNEY-GENERAL 
OF THE UNITED STATES, WHO APPEARED AT THE REQUEST 
OF THE MERCHANTS' ASSOCIATION, OF NEW YORK. 

Mr. Griggs. Mr. Chairman and gentlemen of the committee, I have 
been asked to speak upon the questions arising under this bill which 
may be termed legal, and in that term would be comprehended both 
the legal rights of the riparian owners upon the Niagara River, the 
rights of the State of New York in the river, the rights of the United 
States over the river and its waters, both in respect to navigation 
and in respect to national defense and the international questions 
also arising out of the fact that the river constitutes the boundary 
between this nation and another, and is thereby made subject to regu- 
lation by international treaty or agreement. 

The rights of a riparian owner upon the banks of the Niagara or 
St. Lawrence River, as I understand them, are merely the right to 
use the waters as they flow by the property for the ordinary uses of 
a riparian owner, but the title of such riparian owner on this river, 



150 PRESERVATION OF NIAGARA FALLS. 

as I understand the decisions of the State of New York, does not ex- 
tend to the middle threaH of the river, as is the case Avith private 
rivers and hinds abutting thereon, but the title of the bed of the 
stream from the watermark — I won't say whether hioh or low Avater 
mark, but the ordinary Avatermark — to the middle of the streaui, and 
jurisdiction OA^er it as Avell belongs to the State of NeAV York, so that 
no i^oAver company can correctly assert that it had any title AA^hateA^er 
HI the bed of the stream from the boundi».rv of the riA^er to the middle 
thread thereof. Whatever local jurisdiction and control there is over 
that portion of the river is A'^ested in the State of Ncav York, because 
to the middle thread of the river the locus in quo, if I may use an old 
laAA'A^er's term, is subject to the jurisdiction of the State oi New York 
for all such purposes as a State is entitled to exercise jurisdiction. 
But the rights of the rii)arian OAAmer and the rights of the State of 
New York are subordin;;te and subject to the paramount rights of 
the nation, and I AA'ill coiir-ider first the rights of the nation arising 
from only one aspect of the case, and that is naAdgability of the 
stream. 

Upon the principle Avhich has committed to Congress the right to 
regulate interstate commerce the United States may, through its 
executive officers and its courts, if Congress A'^ests in them authority 
and jurisdiction, control the navigable streams of the United States, 
{«.nd that AA'ilhout regard to aa'Iio nuiy own the bed of the stream, and 
it Avas decided by Justice Bradley, of the Supreme Court of the 
United States, in a case in Avhich New Jersey AA-as one party and the 
Staten Island Railroad and Ferry Company was the other party, that 
the United States might authorize the construction of a railroad and 
a bridge across navigable waters, the title to the bed of AAdiich AA'as 
vested in the State of Ncav Jersey, Avithout any compensation Avhat- 
ever to the State of New Jersey, and in spite of the fact that the leg- 
islature of the State of New Jersey had passed a law forbidding any 
such structure to be erected Avithout consent of the State. I have not 
the reference to that decision, iMit it has frequently been cited in the 
Supreme Court of the United States, although the case did not come 
there, and it is recognized noAv as settled authority. 

The extent to Avhich the United States, through Congress, has here- 
tofore exercised this jurisdiction to regulate navigable streams is not 
the fullest extent to Avhich that poAver may be extended. I think some 
confusion has arisen in the minds of coimsel Avho have addressed the 
committee on behalf of the poAA-er companies with reference to this 
particular subject, because of the language and framing of the statute 
under Avhich suits heretofore haA^e been maintained or action hereto- 
fore has been taken by the Secretary of War to prcA-ent structures 
and diA^ersions that AA'ould interfere Avith the navigability of the 
stream. The river and harbor act of 1890, I think it is, authorized 
the Attorney-General of the United States to briug a suit in equity to 
enjoin any structure in or upon a stream AA'hich Avould interfere Avith 
the navigability of the stream, and it Avas under that statute that the 
suit of the United States v. Rio (Irande Dam and Navigation Com- 
pany was prosecuted. The State itself there limited the right to sue 
to tiie ability of the United States to prove an actual or threatened 
impairment of navigability. But the courts have ncA'cr held that 
Congress AA^as Avithout poAver to decide itself absolutely AA'hat struc- 
tures should be permitted and Avhat structures could not be i3ermitted, 



PKESERVATION OF NIAGARA FALLS. * 151 

upon the ground that in the judgment of Congress, without the right 
of appeal to the courts, it was to the interest of the United States to 
])reserve navigation and prevent those parlicuhir things; and so I 
tliink that when Congress, exercising its right to control the navigable 
streams of the United States, says as to a particular river — and we 
Avill instance here the Niagara River — that no water of the river shall 
be diverted at the Falls by any public corporation, even though it is 
put in below, that that would be a legitimate and constitutional exer- 
cise of the power of Congress over this subject. 

Of course, a purely intraterritorial river is subject to the jurisdic- 
tion of Congress only because of its navigability, and if, as a matter 
of fact, it is not navigable. Congress has no jurisdiction over it. But 
it does not rest with the courts to determine what thiugs Congress, in 
its Avisdom, may say may not be done to affect the navigability; what 
the purpose and plans of Congress may be, or of the executive de- 
partment carrying out the laws and will of Congress, it is not for 
tlie courts to say; and if Congress, exerting this power to control 
navigable streams and prevent interference with and diversion of 
water, sees fit to say that this or that kind of diversion shall not take 
place, I take it that their declaration on that subject is absolute proof 
that that kind of a diversion would be an injury to navigation and that 
that kind of diA'ersion ought to be prevented in the interests of navi- 
gation. At any rate, if the object were one of great public benefit, 
if the purpose to be obtained were a very meritorious one. Congress, 
in my opinion, would be justified in asserting the power, in putting 
the power into a statute in time to preserve the riglits of the Gov- 
ernment before they are lost by delay by accjuiescence or laches, Avhich 
might make it very difficult or A'ery unjust to assert the extreme right. 
I say Congress would be justified in asserting the very extreme claim 
of right in a statute and leaving it to anybody that "thought he was 
aggrieved to resort to the courts to have his rights defended and pre- 
served, if they had been impaired. But the right over this particu- 
lar river, the right of Congress to control the diversion of waters of 
the Niagara Falls, need not rest in the slightest degree upon the 
iiavigability of the stream. If it were a trout brook up which even 
a skiff could not go, the Congress of the United States has absolute 
poAver to control it, and that is upon the ground that it is a frontier 
river, a boundary river betAveen this nation and another. 

It is conceded public hiAv. no one Avill question, that without any 
grant in the Constitution of the nation it has an inherent poAver — ^a 
]30Aver of every nation — to protect itself at the frontier against Avhat 
lies beyond. And therefore from time immemorial nations Avhose 
boundaries consisted of riA^ers, Avhether navigable or not, have exer- 
cised both independent and joint control over those rivers, sometimes 
by independent action relating only to their own side, sometimes by 
stipulation and treaty governing by mutual agreement the use of the 
whole stream on both sides. 

Now, the reason for this is perfectly apparent. It arises for one 
reason out of the right of self-defense. The nation has a right to 
say Avhat may be done or what may not be done at its frontier on a 
boundary river in the interest of national protection and defense, 
and the States and the citizens hold AvhateA^er rights they hold sub- 
ordinate and subjected to that paramount right, and it is not neces- 
sary that the nation shall Avait until it is in the conflict of Avar to 



152 *PRESERVATION OF NIAGARA FALLS. 

assert those rights; it has a right to assert them for the^ purposes of 
peace. The United States has absohite power to say at what points 
on its frontier either merchandise or individual persons may enter 
its territory and how they may enter; it has absohite control over 
international commerce; it has a right to establish a line of pickets 
along the frontier, whether it be on land or water, and forbid any 
person, or such persons as it sees fit to designate, from crossing the 
river into our territory, or from going from our territory into the 
opposite territory. 

I think if you gentlemen will consider for a moment what must be 
the powers of a nation with reference to its frontier you will find no 
difficulty whatever in this subject, and therefore in its constitu- 
tional jurisdiction you are seeking, for you have it on these two 
explicit grounds — on the last one as fully as it could possibly be 
desired. 

Further than that, this bill deals with the subject of transmitting 
power from the Canadian side to this side. Can there be any ques- 
tion of the right of Congress to control that? If they can prevent 
the Canadian fishermen from bringing his cafeeh across Niagara 
Hiver or across the river at Thousand Islands into the United States 
and selling the fish, can not they prevent the power company from 
running its wire across the river and transmitting its power? It has. 
been decided by the Department of Justice in an opinion which seems 
to have been accepted on all hands as expressing the law of the case 
that no person has a right to make an actual material comiection of 
the soil and territory of the United States with a foreign territory 
without the consent of this nation, even though Congress has never 
acted upon that subject. 

You will find the opinion I refer to in the opinions of the Attorneys- 
General about the beginning of 1898. The opinion was written by 
the Solicitor-General, Mr. Richards, now judge of the United States 
circuit court for Ohio, and it is a very able opinion, and the reason- 
ing of it is absolutely sound, and it has been the practice for more 
than a quarter of a century to require any company desiring to lay 
a cable on the shores of the United States to connect it with a for- 
eign country to obtain the consent of the Go\sernmenty and when an 
attempt was made by the French cable company to land a cable on 
Long Island without that consent a suit was begun in behalf of the 
Government without any statute to authorize it, merely asserting 
its sovereign jurisdiction, and although that suit was never decided, 
the principle of it was practically acceded to by the cable company 
in complying with the demands of the Government and securing con- 
sent upon the terms that the Government demanded. 

Now, if they can not land a cable to transmit intelligence, can not 
Congress forbid their landing a cable to transmit electrical energy? 

Reference has been made, I notice, in one of the arguments tliat 
I have had the briefest opportunity to look at, to the case of the 
United States v. The Rio Grande Dam and Irrigation Company, 
decided in 174 United States. As I have said before, that case was 
decided under the act of 1890 or 1891, which gave the Attorney-Gen- 
eral the right to bring an injunction suit to restrain 'Awy interference 
with navigation. It was also based upon another ground, namely, 
that the Rio Grande River along the boundary of. Texas was a 
boundary stream, and that the United States was bound to protect 



PEESERVATION OF NIAGARA FALLS. 153 

it against the depletion of its waters under the obligations of comity 
with a neighboring country. But the court did not find it necessary 
to decide the case on that ground at all; but I want to read what 
the}^ say about it. 

Referring to that subject, it says that such questions might, under 
some circumstances, be existing and important; but here the Rio 
Grande, as far as it is a navigable stream, lies as much within the 
territory of the United States as in that of Mexico, it being where 
navigable the boundary between the two nations, and the middle 
channel being the dividing line. 

Now, the obligations of the United States to preserve for their own citizens 
the navigability of its navigable waters is certainly as great as any reason of 
treaty or international law to their citizens, and if the proposed dam and appro- 
priation of the waters of the Hio Grande constitute a breach of treaty obliga- 
tions or of international duty to Mexico, they ought to constitute an equal 
injury aTid wrong to the people of the United States. We may therefore prop- 
erly limit our inquiry to the effect of the proposed dam and appropriation of 
waters upon the navigability of the Rio Grande. 

They found sufficient jurisdiction in that case to sustain the bill. 
I think that, Mr. Chairman, comprehends all tlie points that I de- 
sired to lay before the committee. 

Mr. Bede. I have found Mr. Griggs's argument very convincing 
to me, but I would like to ask him this question: The titles of the 
bills introduced are for the preservation of Niagara Falls 

Mr. Griggs. That is all of it? 

Mr. Bede. And for other purjDoses. That goes in all the bills. The 
point with me is that Niagara Falls itself is an obstruction of com- 
merce. '\Miat do you think of a bill the purpose of which is to pre- 
serve the obstruction to commerce? 

Mr. Griggs. It may be that it is an obstruction to commerce at 
present, but it does not follow that it will always be. Wo do not 
know what the future may hold with reference to the desirability of 
the United States continuing to hold that and utilizing it for the 
benefit of commerce. Commerce does not include only navigability. 

Mr. Be>de. Does a court take into consideration the title of a bill 
and the purpose of Congress as expressed by the title? 

Mr. Griggs. I would say this : It was argued in the Oleomargarine 
cases, which Congress had constitutional jurisdiction of, according 
to the claims of those who favored it, because it levied a tax on oleo- 
margarine — it was argued there that the real principle of the thing 
was that Congress was not frank; that their object was to prevent 
the manufacture and sale of oleomargarine, and that the object stated 
was simply an excuse, and the Supreme Court held that the court 
could not go behind the declared purpose of Congress. 

Mr. Bede. That is what I was afraid of. They have power over 
navigation, but whether they have the right to preserve an obstruc- 
tion to navigation. 

Mr. Griggs. If you consider this in the light of a boundary river 
you are free from that. 

Mr, Davidson. I would like to have you exi^ress your idea a little 
more fully as to the right of Congress under the interstate-commerce 
clause of the Constitution to regulate commerce as distinguished from 
the regulation of the navigation on the river. You made some refer-^ 
ence to it in your reply just now. 



X54 PRESERVATION OF NIAGARA FALLS. 

Mr. Griggs. I suppose they can regulate the rates that people 
would get for carrying on the Niagara River as one regulation. Is 
that what von mean? 

Mr. Davidson. Not quite. Could they use the water of the river, 
or the condition in which the river is, for any scheme by which com- 
merce might be benefited? 

Mr. GiuGGS. Could the United States? 

Mr. Davidson. Could the United States, outside of the use of it to 
float a ship? 

Mv. Griggs. Absolutely; they can make a canal of it, subject to the 
rights of Canada; they can use the power, divert it there, and buikl 
a 'canal like the Wellar.d Canal, for instance. There is no question 
about that, I think. Your chairman will tell you that he w^ould be- 
lieve that. 

Mr. Davidson. Well, would it go any further than that, if it can 
be imagined that any other use of the condition there in the interest of 
commerce and outside of the small matter of transporting, making a 
passage for a boat ? 

The CiiAiRMANj An extreme question would be this: Suppose there 
were a lateral canal there in which there were locks, for the operation 
of which power was required. Could the power derived from 
Niagara Falls be used to operate that? 
Mr. Griggs. By the United States? 
The Chairman. Yes. 

Mr. Griggs. I have not the slightest doubt of it. They could use 
that power just as well as they could use the w^ater that flov.'s over 
by tlie current to carry the ship down. 

' Mr. Davidson. That is the idea I wanted to get at, that they could 
use the river and its conditions, creating power or anything else that 
would be to the advantage of commerce. 
]\Ir. Griggs. Absolutely. 

jNIr. Spakkman. Assuming it is practical to canalize that river, 
beffinning above and going below the falls, and considering further 
thnt it would be advisable at some time to do that, would the (lovern- 
ment then have to condemn the property of these companies, the 
companies that are using the water for the purpose of. creating 
power, electric power? 

Mr. Griggs. I Avould not want to answer that question positively. 
It would l)e a veiy interesting and diflicult question, and the longer 
Congress remains silent on (he subject the more difficult the question 
Avill be and the mc^re unjust it will be to interfere with these people. 
The sooner Congress acts the less they will have to pay, if anything. 
I do not say they will have to pay anything. 

Mr. Si'ARKMAN. I understand you to contend, hoAvever, that Con- 
gress has })ower to deal with the river and falls independent of the 
question of navigability? 
Mr. Griggs. Yes, sir. 

Mr. Sparkman. Do you think that Congress, either for one pur- 
pose or the other, w^ould have exclusive poAver to say just Avhpt could 
or could not be done there ? 

Mv. Griggs. I think they would haA^e the exclusive poAver, 
Mr. Burgess. Here is the situation that confronts us: Whatever 
the poAvers of Congress are they have not been exercised. The 
poAvers of a State for other purposes have been exercised, and invest- 



PEESERVATION OF NIAGARA FALLS. 155 

merits have been made under charters authoritatively granted by the 
State. Would the courts permit Congress to destroy those invest- 
ments by the exercise of any power, conceding it had the right ? That 
is the same question asked you by your neighbor there, just in another 
form. 

Mr. Griggs. I do not wish to give a positive opinion on that, but I 
say this : If there had been a law of Congress forbidding it of course 
they could recover no compensation, and the sooner you pass a law 
of that kind the less of this kind of compensation 5^011 will be liable 
for. I would say this as to the equity of it : That without regard to 
the right of a person, Avhen Congress has been silent, stood by and 
seen people in good faith invest their money — they ought to be sure 
it is a real investment, and not watered stock — they ought not to let 
those people lose their money. I do not think it would be right for 
Congress to sit still and let peoj^le make bona fide investments on the 
strength of that silence, and then boost them out without paying them 
for it. And that necessitates Congress saying something very quickly 
on the subject. 

Mr. Burgess. I thought maybe you had looked into that particu- 
larly. 

Mr. Griggs. No; I have not. 

The Chairman. One question a little in the line of what Mr. Bede 
asks: To what extent can the court in passing upon the bill consider 
the real motive in passing the bill? This bill has in its title this, 
'' for the control and regulation of the w^aters of Niagara River, for 
the preservation of Niagara Falls, and for other purposes." As it 
seems to me, there is a question of navigation there which assumes 
very considerable importance. But suppose in attacking the validity 
(if the measure some person should say the real object of that bill was 
the preservation of Niagara Falls, how far would you say the courts 
could take up that question and consider the actual motive? 

Mr. Griggs, I would say this: That the judicial department will 
never question or inquire into the motives of Congress in passing an 
act upon a subject over which they have jurisdiction. That was 
demonstrated by the frequent decisions of the Supreme Court in 
the tariff acts, where they have been assaulted upon the ground that 
they were not intended to produce revenue, but were intended to 
protect manufacturers. The courts have always refused to listen to 
that plea. The same suggestion of imin-oper motive was raised in 
the Oleomargarine cases. The court will only inquire whether there 
was constitutional authority for doing that particular thing, and 
what the motive of Congress was they will not perDiU to be questioned. 

Mr. At,emander. Do you regard navigability of a stream as a ques- 
tion of fact? 

Mr. Griggs. It is a question of fact under the statutes as they ntand 
now, because the laws apply only to those which are navigable, and 
there is necessarily a question of fact in any suit instituted. 

Mr. Alexander. If it is a question of fact, (jeneral, would the 
courts have a right to review the question? 

Mr. Griggs. Well, I Avould confine that answer to the Niagara 
River. There is no question but what that is a navigable river. 
The fact that it is not navigable for boats over the falls and imme- 
dintel}^ below the falls would not affect tlie question whatever. Iiecause 
it is a navigable river above and below, and the court would never 



156 PRESEKVATION OF NIAGARA FALLS. 

inquire whether Congress had abandoned forever the right to make 
it navigable between those two points. 

Mr. Alexander. I was seeking your opinion, General Griggs. If 
navigability is a question of fact, would the court have a right to 
pass upon the question regardless of the Niagara liiver? 

Mr. Griggs. I will answer your question that I think the courts 
v<^ould have a right to decide that a river which Congress had de- 
clared to be navigable was not navigable if the facts proved it, sir. 

Mr. Alexander. In your letter of January 31, 190G (and I ask this 
question by request), you say, " For the purpo.-es of ordinary domes- 
tic jurisdiction the river on this side to the center line thereof is under 
the jurisdiction of the State of New York." I simply ask if that is 
Ltill your opinion? 

Mr. Griggs. That is my opinion; yes. I mean by that that crimes 
committed on the river to the central line are within the Stnte of 
New York and subject to be tried and determined there, and it is in 
that sense within the jurisdiction of New York, subject to the para- 
mount jurisdiction of the United States for regulating navigation 
and for regulating the international boundary. 

Mr. Davidson. On that other question of navigabilitj'^ of the river, 
would the court inquire into the fact as to whether a particular 
portion of the river was navigable in fact, if it was recognized that 
other portions of the river were navigable in fact ? 

Mr. Griggs. I do not think they would, if they held in a case that 
the fact that the river is not navigable at certain points does not 
make it a nonnavigable river. 

The Chairman. That is, the river must be taken as an entirety? 

Mr. Griggs. Yes; as an entirety. 

Mr. Humphrey. Do you remember that case ? 

Mr. Griggs. No. 

(A gentleman on the side made a suggestion that the reporter 
could not hear. ) 

Mr. Griggs (continuing). It was in the Federal courts, the courts 
have also decided this: That Congress for improving navigation may 
utterly destroy and abandon a channel of a river in one place and 
run the channel somewhere else, and are under no obligations to pay 
damages to those that border on the old channel. 

Mr. Sparkman. You say that, taking everything into considera- 
tion, Congress has the exclusive control over such a stream as Niagara 
River and the falls not only for the purposes of navigation, but for 
other purposes, which you explained a moment ago. Excluding those 
other purposes, would you thiidc it had exclusive power to deal "With 
the question of navigability ? 

Mr. Griggs. I think it has. 

Mr. Sparkman. Assuming it has navigability? 

Mr. Griggs. Yes; that is to say, subject to the rights of C&nada,. o,f 
course. 

Mr. Sparkman. You have fust stated that you thought the co^irt 
would have a right to say a stream was not navigable, although; 
Congress might declare it to be. 

Mr. Griggs. I think so. 

Mr. Sparkman. But assuming that a stream is navigable in pointi 
of fact? 

Mr.. G?iggs., Then their power is absolute^ 



PKESEEVATION OF NIAGARA FALLS. 157 

Mr. Sparkman. Now, it is navigable above Niagara Falls and 
below Niagara Falls, but not at Niagara Falls. (Yon may have 
ansAvered this question already, but I did not catch it.) If that is a 
fact, that the taking of water there, even though it might dry up 
Niagara Falls, would not injure navigation above or below," you 
think that Congress would still have the right to deal with it? 

Mr. Griggs. I think Congress would have that right. 

JNIr. Sparkiman. Leaving out the question of the boundary? 

Mr. Griggs. Yes; leaving out the question of the boundary, I do. 
Apply it to the Potomac Eiver, at any point where the Potomac 
River is navigable, or where Congress in the exercise of its power can 
make it navigable; Congress has the right to say what obstructions 
shall take' place, and what are injurious to naA'igation. 

Mr. Sparkman. I did not hear the first part of your statement. 
Do I understand that you support this bill? 

Mr. Griggs. I am supporting the constitutionality and the policy 
also, although I did not speak to that. 

Mr. Sparkman. Do you think that this meets the situation? 

Mr. Griggs. I think it meets it very well, not only to preserve the 
investments alread}^ made there, but to prevent the total abstraction 
of water from the falls and to secure other rights which might cost 
the Government a good deal of money in the future. 

Mr. Sparkman. You do not think this would raise any questions 
of rights that the courts would interfere with ? 

Mr. Griggs. No ; I don't think so. 

Mr. Bishop. Would you think it advisable to amend the title? 

Mr. Griggs. I never yet heard of — there is no constitutional pro- 
vision in the Federal Constitution that the title must express the 
object of the act; but there is in most States. I have not considered 
that especially. If you should make it read, " For the control and 
regulation of the waters of Niagara River, for the preservation of 
navigation therein, and for the preservation of Niagara Falls," in 
other words, if you put in somewhere the word " navigation," I think 
it would not do any harm. 

Mr. Jones. Then the courts would not go behind the action of 
Congress? 

Mr. Griggs. No ; I don't think so ; and I do not think they would, 
anyway. 

Mr. Lawrence. Do you think, as a matter of policy, that Congress 
should permit the commercial value of the falls to be utilized up to 
the point where it will not mar the scenic beauty of the falls? 

Mr. Griggs. This is what I think: I think the falls ought to be 
preserved as they are because of their scenic beauty, one of the won- 
ders of nature, interesting not only to the people of this countrj^ but 
of all countries ; I think they ought to be preserved. Now, whatever 
use can be made of them consistent with that I see no objection to. 

Mr. Lawrence. Then, if the committee should conclude that a 
greater amount of water could be safely diverted from the river than 
is now being diverted you think it proj)er to amend the bill providing 
for such further diversion ? 

Mr. Griggs. Since you have asked me that, I would respectfully 
suggest that that judgment be placed in some executive officer or 
board of the Government where it can be accurately determined be- 
forehand, and where permission must be obtained, and all the plans 

P N F — OG 11 



158 PRESERVATIOlSr OF NIAGAEA FALLS. 

and specifications and extent of the diversion be set out, and license 
granted. 

Mr. Lawrence. But this bill which you favor limits the amount 
of water which can be diverted to the amount now being used. 

Mr. Griggs. As to Avhether any more can be used without affecting- 
the beauty of the scener}^, I of course know nothing. 

Mr. Lawrence. But you would suggest that that might be left to 
the discretion of some executive oflicer? 

Mr. Griggs. I should think so ; yes ; that that could very safely be 
done. Of course it is impossible for a committee of Congress to 
grant permits, and so on. Whether you want to stop it absolutely 
until you get further light upon it would be another practical ques- 
tion. 

Mr. Lawrence. I wanted to get your notion about it. 

STATEMENT OF MR. J. HORACE M'FARLAND, PRESIDENT OF THE 
AMERICAN CIVIC ASSOCIATION. 

Mr. McFarland. Mr. Chairman and gentlemen, I fancy, from a 
very brief survey of the testimony so far as has been printed, that all 
who have been in this room this week have been here apparently for 
one purpose — that of preserving Niagara Falls. There seems, how- 
ever, to be some difference as to the party for whom the falls is to be 
preserved. The engineers, the promoters, and the attorneys preced- 
ing this hearing have urged the preservation of the falls for the inter- 
ests they represent. I come before you this morning representing an 
association which urges and resjDCct fully demands the preservation 
of the falls for the people. I feel that we represent the vested rights 
of every American citizen in the Falls of Niagara, a right possessed 
by every gentleman in this room in equal proi^ortion, and not that 
we represent vested rights on whatever basis those rights may be 
claimed. I may be wrong in that, and perhaps the contention that 
Niagara Falls belongs to all the world is the proper contention. 
Such a contention has been raised in a letter received by the secretary 
of our association from a French gentleman, who said — 

Allow me to say that you are wrong while sayiiis in yonr adA'ertlsenient in 
World's Work that Niagara Falls belongs to all of yon Americans. They do 
belong to nobody and to everybody in the wide world. To destroy then) would 
be to hurt all of us fellow-men. Therefore I beg leave to inclose a contribution 
of 20 francs so as to become a member of your association if it is allowed to a 
French writer. 

Mr. Bede. ^Vliat do you think of turning it over to The Hague 
convention ? 

Mr. McFarland. It would be an excellent proposition, Mr. Bede. 

You have had engineering and economic arguments, but I believe 
until this morning no unselfish argument. That is, the interests here 
have had in mind benefits to be accrued by a few. I am afraid that 
the minds of the gentlemen who have been presenting the claims to 
the right of the use of the water of Niagara have been based primarily 
on those benefits to a few. One of the large companies here admitted 
practical ownership by one family of vested rights which rested on 
a sheriff's sale. Another clamored for water, and it is alleged that 
its $5,000,000 base line of the pyramid is erected with the pyramid 
inverted upon an apex of about $5,000. So far as investigation can 



PBESERVATION OF NIAGARA FALLS. 159 

readily disclose, not 1,000 American citizens are involved in the ur- 
gency with which claims have been brought here for the use of the 
Niagara River. 

I speak to you, gentlemen, for millions who have evidenced their 
feeling in this matter most strongly, and all they say is comprised in 
two words — " Save Niagara ! " They are not interested in the engi- 
neering details, they are not interested in the legal aspect or the eco- 
nomic aspect. With all due respect to the able presentation just 
made to you by Governor Griggs, they do not care much about the 
international side of it, for many of them come from the other side of 
the border. They simply say : " We want Niagara saved for all the 
people." 

In looking over the reports that have been made of the testimony 
or statements produced in this room, I am impressed with the fact 
that, whereas it has been said that the law is not an exact science, this 
room would have seemed to furnish abundant testimony to the fact 
that engineering was not an exact science. Differences of a hundred 
per cent in the estimates of absolutely capable engineers have been 
produced before you. One man has said, I believe, that without 
greatly destroying the scenic beauty of Niagara a certain amount of 
water could be abstracted, while another man says that one-half as 
much will injure the falls. Yet another engineer speaks of the water 
passing over the crest as being TO per cent in excess of that which 
you have before you in the report of the American members of the 
International Waterways Connnission. 

Another and most interesting claimant for 18,000 feet, approxi- 
mately, in addition to all proposed diversions, insists that his scheme 
will increase the beauty of the American Fall and increase the quan- 
tity of water going over it. Another proves — and this, it seems to me, 
was the most interesting of all the contentions — that as you reduce 
the quantity of water which flows, over the American Fall, particu- 
larly, you increase its covering power. I could not be but very much 
interested in this contention, which, if I remember it, was that if 
the average depth was 1 feet over the American Fall and 50 per cent 
was taken away for the production of power for a few persons, that 
the depth of water would be over 3 feet. 

Mr. Bede. Two feet 10 inches, did he not say? 

Mr. McFarland. I think something like that, or 3 feet. Now, 
gentlemen, if we could protract that interesting calculation I would 
like to be possessed of the last inch, for if it was mixed with white- 
wash it would make the finest spreading concern ever imagined by 
the mind of man. It would cover a whole lot of power fences. And 
again, you have had prepared for you an adornment for Niagara,, 
for it was stated early in the week here that a great power house 
had been erected which was in the Italian renaissance style. Ye 
Gods, Niagara has waited all these years to have an Italian renais- 
sance adornment added to her majesty ! 

All these engineers propose to save the falls by diversion, and 
every one of them is absolutely honest in hoping that that diversion 
will not injure the falls. That the conclusions of these people, gen- 
tlemen — and I have the utmost respect for every one of them — are in 
some sense influenced by their hopes, I believe you -who have lis- 
tened to the confusing statements from them will believe. Is it not 
fair, gentlemen, to stop where we are? You have had conflicting 



160 PRESERVATION OF NIAGARA FALLS. 

opinions as to jusf how much water can be taken, how much you can 
pour out without having it empty, and how very strong will be the 
flow of the last half inch, how it will spread, but you can not be 
certain ; there is no certain data. And yet no man of sanity will for 
one moment controvert the position that if you stop now the falls 
will be no further damaged, and we rest our case very strongly upon 
that irrefutable statement. A number of the interesting propositions 
that have been made in this respect pay some slight regard to the 
scenic value of the falls, but it becomes slighter and slighter and 
slighter as those who develop these schemes go into the details. 

The people — engineers — who have spoken to you this week always 
started out with the proposition to save the falls, and nearly alwaj^s 
ended with a sneer at those whom they say are moved by sentiment 
and who are interfering with vested interests. One gentleman, who 
has not been represented here, has suggested that the falls be used 
entirely for power exploitation for six days in the week and then 
jDcrmit it to run for the balance of us on the Sabbath. When that 
proposition was seriously made to me — and it was made in person — I 
asked the proposing engineer how he was going to get us to the falls 
on the Sabbath, and he hemmed and hawed and finally concluded 
that we might walk. There is^ no doubt of it, gentlemen, the propo- 
sition of those who are interested in the diversion of the water of the 
falls will willingly permit you to walk to see them. But you won't 
w^alk. 

I hope you have seen a cartoon in this week's Puck, in which the 
artist's imagination is exerted as to the conditions that will prevail 
at Niagara Falls if the plans of the people who wish to divert the 
water succeed. Niagara Falls is shown as a great precipice, the falls 
being dry. The cave of the winds is shown as a cave under where the 
falls once poured their waters, and in there ice cream is served ; that 
is below where the eye of man has ever penetrated so far. There is 
also a little place where you can buy genuine Niagara water for 5 
cents a glass. The Maid of the Mist is now an automobile, and runs 
along the dry river bed and shows you the scenery. There are 
various other adornments, which will suggest themselves to your 
mind. Gentlemen, that is a cartoon, but it is very significant. It 
represents the way the people feel about this matter, and as I said 
to you, they are not very much interested in the law or the engineer- 
ing aspect or the economic aspect, but they are tremendously inter- 
ested in Niagara Falls. It may be fairly assumed that those who 
sit at the editorial tables and honestly endeavor to find out what 
people think have a correct idea about it, and I say that the feeling 
of all the United States may be incorporated in studying what they 
say about it, and I have the pleasure of presenting for your considera- 
tion certain letters from men of this character. I have one from Dr. 
Lyman Abbott, the editor of the Outlook, in which he says : 

The Outlook, 
Tfeic York. April 19. 1906. 
My Dear Mr. McFarland : 1 am A'ery sorry that I can not be present next 
Saturday at the Senate hearing to testify by my presence my interest in saving 
Niagara, but a prior and imperative engagement for that day forbids. The 
issue joined in this case ajipears to me to be one between the whole American 
])eople and a very limited area gengrnphically, with a very small number of 
capitalists. Niagara Falls belongs of right to the nation. No other civilized 
people possesses a natural object of a similar kiud parallel to it in grandeur. 



PRESERVATION OF NIAGARA FALLS. 161 

The people of Georgia and Louisiana, of Illinois and Colorado, in brief, of every 
State in the Union. North and South, East and West, have a share in this unique 
cataract and an interest in its preservation. And it is proposed to ignore their 
right and sacrifice their interests to promote the pecuniary interests of a score 
or so of capitalists and serve the material interests of at best a few counties 
of the State of New York. The sordid selfishness of an insignificant minority 
who are willing to sacrifice Niagara Falls for the purpose of dividends for 
themselves will not succeed if the representatives of the rest of the nation are 
reasonably alert to the interests of their constituents. Why should the nation 
give to these two or three corporations for their private benefit a wealth of 
beauty which is one of the world's wonders and which once destroyed will never 
be restored? 

Yours, sincerely, • Lyman Abbott, 

Another of the men who has had more than some of you will, per- 
haps, believe to do with the molding of public opinion, as evidenced 
recently in the courts at Buffalo, v/here it was shown that a certain 
patent medicine company secured a profit in 1903 of $183,000 by the 
sale of its nostrums, and in 1905 made a loss of $35,000, by the simple 
denunciation of the Ladies' Home Journal, is the gentleman whose 
letter I will now read : 

April 19, 1906. 

My Dear Mr. McFarland : I wish I could come to Washington on Saturday 
if only to present one fact to the Senate committee, and that is the tremendous 
outpouring of letters that came to me directly upon the appearance of the 
article advocating the saving of Niagara Falls in our magazine. I tell you 
when a man says there is no wide public sentiment on this question he is 
counting without his host. Never in my editorial experience, not even in our 
patent-medicine agitation, was a public response so instantaneous and so wide- 
spread. The feeling, as indicated in these letters, was very pronounced and 
admitted of no possible question of how the public felt on this matter. Not 
only were these letters expressive of individual feelings, but the most powerful 
social organizations in the country wrote in an official way. So strong was 
this expressed feeling that we at once decided to print a second article, and 
again the letters streamed in. Hence there is no doubt as to the deep public 
feeling on this question. As a matter of fact, these letters show that the Amer- 
ican people are so peculiarly sensitive on this subject that I can imagine of no 
greater mistake than for Congress to even think for a moment of doing aught 
but passing this bill. I speak with absolute positiveness when I say this, and I 
know only too well, as every editor does, that the public is in no present mood 
to let the already too-much-discussed question of commercialism in civic affairs 
touch their great American beauty spot. 

So I beg of you to say all you can say to the committee not to mistake the 
temper of the American people in this matter. It is not a question of argument 
with them. They have only one single idea in mind as to the falls, and that is 
that they must be let alone ; and Congress will indeed be wise if it acts in 
accordance with a public opinion that is, as I say, about as pronounced and 
absolute as I have ever seen it expressed on any subject. 
Very sincerely, yours, 

Edward Bok. 

Mr. Alexander. May I ask you a question ? 

Mr. McFarland. Certainly. 

Mr. Alexander. Has the Ladies' Home Journal been telling as 
much untruths about the present deterioration of Niagara Falls as 
it told about the patent-medicine nostrum that you spoke of in intro- 
ducing that letter ? 

Mr. McFarland. Colonel Alexander, inasmuch as I am guilty of 
everything that the Ladies' Home Journal has said upon this subject, 
the question comes in a sense personal, and I may answer it by saying 
that everything that was printed in the Ladies' Home Journal with 
regard to Niagara Falls was obtained from Government records of the 



162 PKESERVATION OF NIAGARA FALLS. 

United States or from advices obtained from the New York State 
reservation authorities, with the one exception of the picture repre- 
senting what the falls would look like. Therefore I believe what the 
Ladies' Home Journal said is true. 

Mr. Alexander. Of course rou know the Ladies' Home Journal 
was sued by a Buffalo firm and a very large judgment recovered be- 
cause it made statements, as I understand ii, that liquor was used in 
the nostrum, when it had been shown over and over again, and was 
finally established in court, that such Avas not the case? 

Mr. McFarland, I am sorry to controvert you. Colonel Alexander, 
but inasmuch as that judgment was for $16,000 only, as against a 
claim, I think, of $250,000, and the unfortunate dependence by my 
editor, Mr. Bok, upon the Government analysis of that nostrum, 
seems to place the case in a somewhat different relation from that in" 
which it might otherwise stand. I think Mr. Bok stood exactly on 
the basis that I stand. He was depending on analyses made by offi- 
cers of the Government. I have depended on figures furnished by the 
engineers of the Government, 

With your permission, Mr. Chairman, I will read you also a letter 
from the editor of Collier's Weekly, 

Collier's The National Weekly, 

Neiv York, April 18, 1906. 
Dear Mr. McFarland : Mr. Moffett, who has charge of our news department, 
will write you this afternoon on the Niagara matter. We all feel very strongly 
about it, and by " we " I mean not only the staff of this paper, but i-;erious 
journalists in general. 1 am sure that there is no issue before Congress at 
present which lies more clearly between the final permanent interests of the 
public on the one side and the money-making opportunities of a few men on the 
other. As the Burton bill avoids the Chicago difficulty, it seems to me, as far 
as I understand it, absolutely without any ob.iectiou. Congress is criticised a 
great deal these days ; and as long as it seems to represent the moneyed inter- 
ests of a comparatively few men and to lack the courage or large mindedness to 
represent the permanent interests of the country it will be open to such criticism. 
There is no clearer opportunity to-day for a statesmanlike act that would tend 
to win the confidence of liberal-minded men everywhere and persuade them that 
Congress is capable of taking a broad and high view of its duty than is offered 
in the present case. I am sure that I can speak fur the press over the country 
in saying that to kill this bill will cause bitter disappointment everywhere and 
satisfaction nowhere, except in the breasts of a few men who have an imme- 
diate pecuniary interest. 

Very truly, yours, Norman Hapgood. 

J. H. McFarland, Esq., 

American Civic Association, Harrishurg, Pa. 

I have also a copy of the resolution telegraphed on behalf of the 
Periodical Publishers' Asosciation of America, which, with j^our per- 
mission, I will read : 

Resolved, That the Periodical Publishers' Association of America heartily 
approve the bill introduced in Congress for the purpose of saving Niagara Falls 
by prohibiting the further diversion of water from the falls. 

And it was fiu-ther resolved that a copy of these resolutions be 
telegraphed to the representative before this committee of Congress, 

That you may fully understand what this means, gentlemen, I may 
say that the Periodical Publishers' Association, together Avith those 
Thave cited, Avhose letters I have read here, controls a monthly circula- 
tion of 6,000,000, What that means in an appeal to the country you 



PEESERVATION OF NIAGARA FALLS. 163 

can understand; what one part of it has done in flooding some of you 
with appeals to save Niagara your constituents will serve to inform 
you; what this same body of 6,000,000 will do in sustaining you in 
supporting the Burton bill or any other adequate measure for pre- 
serving Niagara Falls for all the people I do not think you require 
any great suggestion on my part to conceive. 

And so, gentlemen, I close the case for the American Civic Asso- 
ciation to give way to others, with just a question and reiteration upon 
my original theory : That this is not a question of law, of engineer- 
ing, of international boundary, of economics, of coal saving; it is a 
question of sentiment, thank God ! And we stand on it. The Amer- 
ican people want Niagara Falls saved. They are able to pay the 
price. They do not suggest confiscation or the hurt of any man who 
has made an innocent investment, but they w^ant Niagara Falls saved, 
and they ask you to do what you can to save them. 

Mr. Bede. You do not mean to say that Congress can act without 
having its action based on some such argument as Mr. Griggs has 
made here ? 

Mr. McFarland. No, sir. 

Mr. Bede. We can not act on sentiment altogether. 

Mr. McFARiiAND. I should feel, though, that the great sentiment — 
expressed to-day, for instance, in voting a large amount of money for 
the relief of San Francisco — that same sentiment, after all, is the 
paramount sentiment behind law, for it makes law. 

Mr. Lawrence. In order that I could get your idea a little more 
clearly, I gather from what you say that you believe it was an error 
to have a commercial value of Niagara Falls developed at all ? 

Mr. McFarland. I would go to that extent personally, but I would 
not want to bind my association to it. I think that great spectacles 
like this are the possession of the whole nation, and that it would hnve 
been a vastly better thing if years ago Congress had done with 
Niagara Falls just exactly what has been done with the Yellowstone 
National Park— set it aside as a great national possession. 

Mr. Lawrence. And therefore, that being your view, you would 
absolutely stop any further diversion of the water than is now being 
made ? 

Mr. McFarland. I would stop any further diversion than is now 
being made. 

Mr. Lawrence. You would not go so far as to try to prevent the 
diversion that is now being made, would you, or would you not ? 

Mr. McFarland. I may say that the present bill was drawn after 
very considerable conference with your honored chairman, and that 
it represents our views absolutely. 

Mr. Lawrence. You have been in the habit of visiting the falls 
frequently ? 

Mr. McFarland. Yes. 

Mr. Lawrence. Have you noticed any difference in the appearance 
of the falls since the diversion of any water? 

Mr, McFarland. I was at the falls about three weeks ago. I 
could not in the very nature of things, because of the icebound condi- 
tion of affairs, notice any diminution of water; but I could notice a 
tremendous scenic injnrj^, for on the Canadian side, Avhere that ma- 
jestic Horseshoe Fall made the greatest impression, there is a power 
house, one-third its height and one-third its length, installed right 



164 PRESERVATION OF NIAGARA FALLS. 

1113 against the precipice. I think it is an Italian renaissance power 
house. On tlie American side, along where those power plants are 
located, it looks like a dirty back yard where once was a magnificent 
clitT, and the whole condition at Niagara is retrograding to-day. If 
it were not for the saving course of the New York State reserve, it 
would be a poor-looking place. Canada is decorating it with " Cas- 
carets " and " Wilson whisky " and that sort of thing, in addition to 
her power enormities. She has permitted her trolley lines to run 
right through there, and there is just one decent spot about Niagara 
Falls to-day, and that is the New York reservation. So I would say, 
answering your question, that Niagara Falls is retrograding as a 
scenic spectacle; and upon that que.-tion I would refer you to the 
international waterways report, where the jDroposition is insisted 
upon that the grandeur of Niagara Falls depends upon its volume of 
water rather than the height of the cataract. ■ 

(Mr. MacFarland also submitted the following letter from Albert 
Shaw, editor of the Review of Reviews:) 

New York, April 20, 1906. 
Hon, Theodore E. Burton, 

House of Representatives, Washington, D. C 

My Dear Sir : I am strongly impressed with the great desirability of the en- 
actment at this session of a measure to protect Niagara Falls from the danger 
of further diversion of the water of the Niagara River. I believe that the bill 
now in the hands of your counnittee is in the line of sound public policy, and I 
greatly hope it may be favorably acted upon. None of us have any quarrel with 
modern industrial and electrical development, but there are some sacrifices we 
must not be asked to make even to what would seem on some grounds to be a 
desirable form of progress. It is a very poor country, not a rich country, that 
would give up its finer possessions for the practical utilities. This country is 
the richest in the world, and it can afford to have Niagara Falls and to protect 
it for all time. Land has become very valuable in the lieart of New York City, 
but the people of this metropolis feel that they can afford to keep Central Park 
as a breathing spot and as a i)leasure ground. 

Furthermore, quite apart from what civilization and refinement and good 
taste demand of us in these matters, there are also business arguments that 
need only to be stated to be fairly convincing. A great object of natural 
beauty like Niagara Falls comes to be a thing of world renown. Every Ameri- 
can expects sooner or later to see it, and thousands of intelligent foreigners 
have come to this coiuatry wishing first and foremost to see Niagara Falls. 
Such an oliject becomes a great national treasure and asset. I venture to say 
that if it were possible to find out how much Niagara Falls is i-eally worth in 
dollars and cents as a thing that will be visited by countless millions in the 
years to come, it would be plain enough that from the commercial standpoint 
its preservation is imperatively demanded. I do not know what valuation the 
picture dealers would place upon the Sistine Madonna hanging in the Dresden 
Gallery, but I am inclined to think that Dresden would make a bad bargain to 
part with it for a hundred million of dollars, for this picture makes the fame 
of the Dresden Gallery and brings thousands upon thousands of people to 
Dresden to spend their money every year. 

Just as the Sistine Madonna is the most famous picture in the world, so 
Niagara Falls is the most famous object of natviral beauty. Congress has in 
its hands the power to sn^-(> to the Americ;ui peojile their great national treasure. 
I feel confident that our Representatives at Wasbingtou will feel that in taking 
prompt action they are doing a thing that is both wise and patriotic. 
Believe me, very truly, yours, 

Albert Shaw. 



PEESERVATION OF NIAGAEA FALLS* 165 

STATEMENT OF MR. CHAELES M. DOW, PRESIDENT OF THE 
COMMISSION OF THE NEW YORK STATE RESERVATION AT 
NIAGARA. 

Mr. Dow. As a trustee of the Association for the Protection of the 
Adirondacks, as a trustee of the American Scenic and Historic 
Preservation Society, and as a commissioner of the State Reservation 
at Niagara, I have been deeply impressed not only with our phe- 
nomenal scenic resources, but also with the powerful public sentiment 
which demands' their protection for the enjoyment of the people at 
large. 

This sentiment has sprung up within a few years to combat condi- 
tions which did not before exist. 

Within a short time the progress in electrical invention has led man 
to turn to the Falls of Niagara. Against the threatened destruction 
of this exceptional phenomena of nature we instinctively protest, but 
we do not shut our eyes to the material requirements of the age in 
which we live. 

We must have electric light and power in this progressive age, but 
we have only one Niagara Falls, and we can develop our electricity 
at other places. We must go elsewhere and let Niagara continue her 
eternal chant to the might and majesty of the Creator of the universe. 
Niagara is not going to waste while it attracts a million people a year 
from every quarter of the globe to gaze upon it in wonder, and while 
it continues to stir the profoundest emotion of every human being 
with a soul to feel, a nerve to tingle, and a brain to think in the 
presence of this marvelous spectacle. 

The overwhelming public sentiment which demanded the creation 
of the Niagara reservation twenty-one years ago to rescue it and 
which to-day cries out for the protection of the falls from the danger 
which threatens them is sufficient evidence that the American people 
as a whole have an intense appreciation of natural beauty. This 
sentiment in favor of the preservation of the exceptionally beautiful 
and inspiring in nature is a lofty and ennobling one, and it speaks 
well for our generation that such a sentiment should be as universal 
as it is. 

Long before the birth of the Christian era a great Chinese poet 
carved on the rocks at the gorge of the Yangtze, " This is the most 
beautiful place in the world." On the visit of the Chinese imperial 
high conunissioners at Niagara a short time ago the viceroy, using the 
same ancient and classic characters, wrote of Niagara, " This is the 
most beautiful place in the world." This tribute is universal, and 
are Ave not under very large obligations of duty to protect, as trustees 
for the world, this precious heritage of nature ? Have we not enough 
national pride, as Americans in the eyes of the world, to prevent the 
destruction of the glorious beauty of our famous cataract? 

The great factor of its fame is its intrinsic grandeur. Coming 
not from its height, but from its seemingly immeasurable volume and 
force, giving the sense of overwhelming and irresistible power and 
majesty. 

Niagara is not to be "described. It is too close to the infinite source 
of all things to come within the range of human words. In some re- 
spects Niagara is finite, and it has its limits, unfortunately, as we 



166 PKESERVATION OP NIAGARA FALLS. 

shall see presently. You can measure the number of cubic feet of 
water that pass over it a second. You can ascertain its height to an 
inch. You can calculate to a horsepower the electrical energy which 
it will generate. All of these things can be stated in words and 
figures. And yet Niagara is not described, and the question which 
lies back of all of it — the question of the source of this eternal round 
of evaporation, cloud, rainfall, riverflow, and waterfall — remains 
unanswered, except in the inexpressible thouglits of the believer. 

Niagara is a thing to be seen and to be felt in very presence. It 
can not be apprehended through the words or art of another. And 
that is our great reason why Niagara should be perpetuated, so that 
it may come within the personal experience of generations to come. 
Historian, poet, artist, and scientist may summon the utmost re- 
sources of their art and craft to delineate the cataract, but Niagara 
can not be perpetuated in book, poem, painting, or scientific treatise. 
Niagara once dried up will be lost forever, and the human race will 
no longer experience those exalted sensations and emotions which can 
be felt only in the actual joresence of the great cataract. 

In what I have just said I have implied a paradox. I have said 
that Niagara is so near the infinite that it is indescribable in finite 
terms, and yet that it really has its limitations. Therein lies a double 
danger to the falls. On account of the actual limitations on the 
volume of Niagara River, the falls can be destroyed; and on account 
of the popular idea of their inexhaustibility it is difKcult to arouse 
j^eople's minds in some quarters to the gravity of the present menace. 
With a people whose imagination has been stirred for generations 
by the ponderous volume pouring over the cataract, the inexhaust- 
ibility of Niagara has been as firm a belief as their confidence in the 
limitless heat of the sun, and they are incredulous of the unwelcome 
fact that Niagara can be dried up. " You might as well think of 
baling out the sea as to think of drying up Niagara," said a gentleman 
advocating a water franchise before the New York legislature tw^o 
winters ago. 

But Avhat is the fact to be set over against this tradition of the 
infinite resource of Niagara? It is that the volume of the river is 
limited. Observations by United States engineers, covering a period 
of forty years, show that the minimum discharge of Lake Erie is 
165,340 cubic feet a second ; the maximum, 242,000, and the average, 
222,400 cubic feet per second. 

NoAv, it stands to reason that the volume of the falls, as a whole, 
will be diminished exactly in proportion to the amount of water taken 
from the river above them. The relative effect of this diversion upon 
the two falls depends upon the point at which the water is taken. 
To understand this it should be borne in mind that there are two 
falls, separated by Goat Island. The international boundary line 
passes through the Canadian Fall at the former apex of the horse- 
shoe, thus placing the American Fall, Goat Island, and half of the 
horseshoe, or so-called Canadian Fall, on our side of the line. So 
our sentimental or our real interest is not confined to the American 
Fall. 

About three-fifths of a mile above the falls tiie stream is divided b\ 
the apex of Goat Island. The point of division is about 750 feet from 
the American shore and 3,750 feet from the Canadian shore. If the 
cross section of the river bed were horizontal, the gi-adient equal, and 



PRESERVATION OF NIAGARA FALLS. 167 

the current parallel to the midstream line, Goat Island would divide 
the volume in the ratio of one to five, giving the American Fall one- 
^ixth and the Canadian Fall five-sixths of the water. But the river 
bed is not horizontal. It dips toward the Canadian side, and at the 
cataract the sill or rock edge of the Horseshoe Fall is 10 feet lower 
than the sill of the American Fall. The force of gravity, therefore, 
also tends to aggrandize the Canadian Fall at the expense of the 
American. As a result of these conditions, it is entimated that the 
American Falls get only one-tenth of the volume of the river, or 
about 22,000 cubic feet a second, while the Horseshoe Fall gets about 
i'00,000 cubic feet on the average. 

Two other factors of the physical situation must be mentioned in 
order to have a complete understanding of the relative effect of diver- 
sion upon the falls. 

The channel between Goat Island and the American shore is in the 
form of an inverted funnel. The small proportion of water which 
it receives enters through an opening about 750 feet wide and spreads 
out thinly over a crest line 1.060 feet long. 

The other factor is this : From near the head of Goat Island to the 
Canadian shore there is a line of breakers at the beginning of a verj^ 
rapid descent in the Canadian channel. It is obvious that any water 
taken out below the head of these breakers will afi'ect only the Horse- 
shoe Fall. 

We must admit that the State of New York has not protected the 
falls as she should have guarded them. With a prodigality which 
has utterly ignored the property rights of the people in that which 
forms a part of their Commonwealth — wealth belonging to them in 
common — she has given away the immensely valuable water power 
of Niagara without exacting a cent of compensation for tax relief. 

However, it is but justice to say that these grants were largely made 
at a time when the utilization of Niagara for power pur])oses was in 
a measure experimental, and that no grants for the use of water have 
been made by the legislature of the State of New York since 1894. 

But this brings us to another phase of the subject. Of what avail 
is it for us to guard our half of the river if Canada will not similarly 
guard hers? It is here that we invoke the Federal authority to effect 
coordinate action on both sides of the international boundary by 
treaty with Great Britain. 

Before appealing to our cousins across the boundary, however, it 
might give an earnest of good faith if our Federal Government would 
exercise on this side the power which it already has to prevent tlve 
diversion of the water. 

The fee ownership of the wa4;er of Niagara River on our side of the 
boundary and of the land under water is in the people of the State of 
New York; but as an international boundary and a navigable streaui, 
the Federal Government already has, and has exercised, the right of 
jurisdiction over it. The Niagara River, in law, is a navigable 
stream throughout its length. The upper river is practically navi- 
gable from Port Day — at the u]:)per end of the State reservation — to 
Lake Erie. The water can not be lowered on one side without lower- 
ing it on the other, and it would seem to be within the sovereign 
power of the two National Governments to maintain its level. 

Regarding the present water conditions at Niagara, the following 
report was submitted to me Wednesday, April 18, by Superintendent- 



108 PRESERVATION OF NIAGARA FALLS. 

Perry, of the Niagara Falls Reservation. The computations were 
made by Siipt. E. If.. Perry and James Wilson, wlio is superintendent 
of the Niagara Falls Victoria Park. Mr. Wilson is a competent 
civil engineer, a close observer of conditions, and has been superin- 
tendent of that park since it was acquired by the Canadian authori- 
ties, about twenty years ago. 

The width of the crest of the American Fall is 1,000 feet; the aver- 
age depth of the American Fall at the crest is now 1.22 feet. 

Mr. Bede. Is that on the American side ? 

Mr. Dow. Yes, sir. 

Mr. Bede. We have had testimony here that it is 4 feet. 

The CnAiR:MAN. I think that the consensus of the testimony is that 
it is nearly 4 feet. 

Mr. Sparkman. How deep did you say that it was ? 

Mr. Dow. 1.22 feet. That information was telephoned to me. 

The Chairman. Was that measured — was it an actual measure- 
ment ? 

Mr. Dow. No, sir. 

Mr. Ransdell. Was that taken at a time when the east wind was 
prevailing ? 

Mr. Dow. No, sir; the conditions were nonnal. I took particular 
pains to be certain of that. 

Mr. MacFarland. These gentlemen are State employees. 

Mr. Dow. One of them is a State employee and one is an employee 
of the Canadian government. 

Mr. Bede. What volume do you claim goes over ? 

Mr. Dow. The report explains it. 

Mr. Bede. There is some difference on that point. 

Mr. Lawrence. Did you say who made these figures? 

INIr. Dow. They were made by Supt. E. H. Perry, and Mr. James 
Wilson, who is superintendent of the Niagara Falls Victoria Park, 
and has been for twenty years, and who is a civil engineer ; and these 
statements are, to the best of their knowledge and judgment, correct. 

The width of the Horseshoe Fall in 1890 was 3,010 feet. Owing 
to the recession and filling on the Canadian side by power companies 
the crest line is reduced to approximately 2,500 feet. That is the 
effect of concentrating the water, narrowing it up, which makes it 
ajipear as full as ever. This filling was done in 1904 and 1905. 

The average depth of the water at the crest in 1890, as given by the 
United States engineers, was 8.8 feet; the average depth now at 
crest, 7.9 feet; the depth of the water at the deepest place, about 
12 feet. We determine the depth by the amount of water, the veloc- 
ity, and the width. By the United States engineers' estimate in 1890 
the flow of water passing Buffalo was 222.400 cubic feet per second. 
We deduct the Chicago Drainage Canal, 5.000 cubic feet; then deduct 
water by the Niagara Falls Power Company and Hydraulic Power 
Company, making 11,700 feet. The amount of flow of the two falls 
is 205,700 cubic feet per second. 

That was what you asked about, I believe, Mr. Bede. 

Assume that 10 per cent goes over the American Falls. We take 
20,700 and deduct that from the total amount of water passing over 
the falls, leaving 185,000 cubic feet per second flowing over the 
Horseshoe Fall. From that we deduct the water taken by the On- 
tario Power Company and the Canadian Niagara Power Company, 



PEESERVATION OF NIAGARA FALLS. 169 

■which amoimts to 3.200 cubic feet per second, leaving 181,800 cubic 
feet per second as the amount of water passing over the Horseshoe 
Fall at the jd resent time, as near as we could compute. The average 
flow at the crest of the Horseshoe Fall is estimated at about 10 feet 
per second. Ten feet per second multiplied by 2,300 and dividing 
181,800 by the product gives us 7.9 feet as the average depth of the 
Horseshoe Fall at the present time. We use the figures 2,300 in- 
stead of 2,500, as there is little Avater going over 200 feet of the crest 
on the American side of the Horseshoe Fall. During 1905 we had 
extremely high water, and the average so far this year is about the 
same as last. 

The Chairman. Those last few figures are striking. I think that 
the nature of the Horseshoe Fall is owing to the contour of the bot- 
tom and it not being straight across from end to end. Do you un- 
derstand that measurement to be correct — 3,000 feet as the total 
length ? 

Mr. Dow. It was 3,010 feet, and now it is 2,500 feet. 

Mr. Davidson. How was that narrowed up? 

Mr. Dow. By diversion and recession. As the Table Rock broke a 
feAv years ago and the Horseshoe Fall receded it narrowed it up 
naturally somewhat at the shore line, and since that the power com- 
panies have filled in on the Canadian side. 

Mr. Alexander. Where does your measurement begin on the Goat 
Island side of the Horseshoe Fall ? 

Mr. Dow. On the Goat Island side ? AVliat do you refer to ? 

Mr. Alexander. Where does your measurement begin on the Goat 
Island side of the Horseshoe Fall to get that 2,500 feet ? 

Mr. Dow. I suppose it begins at the crest of the fall as it strikes 
against Goat Island. 

Mr. Alexander. Would you measure back to the site of the old 
tower? , 

Mr. Dow. There is about 200 feet where there is little water pass- 
ing over ; at the point of the Terrapin Rock, at the old tower. 

Mr. Alexander. Would you measure back from that? 

Mr. Dow. Yes, sir. 

Mr. Davidson. You omitted that 200 feet in the comjDutation of the 
average depth? 

Mr. Dow. Yes, sir. 

Mr. Alexander. You omitted that in the computation of 7.9 feet 
depth? 

Mr. Dow. Yes. Those measurements are made by men who are 
very familiar with it, and not by me. I called up Mr. Perry over the 
telephone on Tuesday and asked him for these figures, and I got 
them just before I left home. 

The Chairman. They were transmitted to you by telephone? 

Mr. Dow. Yes, sir. 

The Chairman. Would it not be well for you to have those figures 
verified ? 

Mr. DoAV. I have a duplicate of these figures made by Mr. James 
Wilson in his own handwriting. 

The Chairman. You have? 

Mr. Dow. Yes, sir; handed to me last night. I think it was his 
handwriting;. 



170 PRESERVATION OP NIAGARA FALLS. 

Mr. Lawrence. You are familiar with the falls yourself, are you? 

Mr. DoAv. Yes, sir. 

Mr. Laavrence. Is it possible for you to notice any difference in 
the floAv of the Avater over the American and Horseshoe Falls? 

Mv. DoAV. There is so much A'ariance in the flow of the water that 
it is hard to tell. I think those people who see no diminution in it 
are quite honest in their opinion. 

The Chairman. Do you yourself see any diminution in it? 

Mr. DoAv. No, sir; I am there once a month, possibly, for a day. 
But there is this about it. The Niagara Falls electric poAA^er develop- 
ment Avas started in 1897. The deA'clopment has been gradual. I 
think in 1897 or 1898 the Niagara Falls PoAA'er Company took about 
2,000 cubic feet. They now take 4,000 cubic feet. The development 
is so gradual that people aaIio are about the falls continually AAould 
hardly see it. The Niagara Falls PoAA-er Company development com- 
menced, say, in 1895. It was but a fcAV hundred feet up to 1897,. 
when it became something like 2,000 feet. It has been growing at 
the rate of a thousand feet, say, a year, until it is now about 8,000 
feet. That comes so gradually, and the water is clraAvn from the en- 
tire breadth of the river and not from the American side, that it 
would hardly be apparent with the present amount. On the Cana- 
dian side, as these gentlemen stated, they are now diverting 3,200 feet. 
Their charter rights giA^e them 32.000 feet. They are only divert- 
ing one-tenth of Avhat they are entitled to divert. But the concentra- 
tion of the Avater through the narrowing of the crest and the stream 
would of course mislead anyone. 

Mr. Laavrence. You are inclined to think, then, that the scenic 
beauty of the falls has not been marred to any appreciable extent 
by the Avater noAv being diverted, and whatever marring of the scenic 
beauty there is has come from the structures which it was necessary 
to erect there ? 

Mr. DoAv. The scenic beauty has been marred 'exactly to the extent 
to which there is diversion. It is purely a matter of degree. The 
diversion on the broad riA^er is about 12,000 feet. 

Mr. Laavrence. Did I not understand you to say that you could 
not obserA'e any diminution? 

Mr. DoAS'. I could not define it by the eye. 

Mr. Laavrence. How could you detect it? 

Mr. DoAV. This report would shoAV the difference. 

Mr. Laavrence. As a scenic spectacle, what has been the effect? 

Mr. DoAV. Very little. 

Mr. Laavrence. So that if there has been any marring of the scenic 
effect, it has been, as Mr. McFarland says, by the erection of struc- 
tures. 

Mr. Bede. You can not detect it by the sound, either, can j^ou ? 

Mr. Dow. No, sir; it is the fear of the future development that 
brings us here. It is what may be done that we are looking after, 
this tremendous diversion. 

Mr. Bede. I think we had testimony by Mr. Cooper that he had in 
contemplation excavating the river above Goat Island, so as to give 
more water floAving on the American side. Would that mar the 
beauty of the falls? 

Mr. DoAV. My impression is that that blasting has been done for 
the benefit of the two poAver companies that are above there, in 



PEESERVATION" OF NIAGARA FALLS. l7l 

order to increase the flow in front of their intakes, and particularly 
for ice conditions. The ice conditions are bad. ' That has not been 
done by the Government. 

Mr. Bede. But our Government has the riglit to have the flow of 
Niagara on our side, and would the diversion help to preserve the 
falls? 

JNIr. Dow. I should think so. 

The Chairman. This blasting that has been done has been a little 
way above the intakes of the Niagara Falls Power Company and of 
another company, and this blasting spoken of by Mr. Cooper is well 
above that point. 

]\Ir. Ellis. Several miles above. 

Mr. Dow. Yes, sir. • 

Mr. Ellis. If that did not mar the scenic beauty, what would be 
the objection to it? 

Mr. Dow\ I do not think anybody could say as to that, unless he 
knows the bed of the river. 

Mr. Burgess. Have you any estimate as to tlie extent to which the 
water can be taken from the river above without marring the scenic 
beauty ? 

Mr. Dow. It is impossible to say that. We have felt that these 
companies that had these rights were going to exercise them, and we 
want it absolutely stopped — further grants. There are certain com- 
panies that have legal rights and have made large investments, and 
they acted in good faith, and, while I am not a lawyer, I suppose 
their vested rights will stand. I do not know anything about that, 
however. 

Mr. Law^rence. Would you have such companies prevented from 
diverting any amount of water beyond that which they are now 
diverting? 

Mr. Dow. I understand this bill proposes to hold up further di- 
version for three years. 

Mr. Lawrence. That is exactly it, and that proposition you would 
favor ? 

Mr. Dow. I should think that would be a good thing to do. 

Mr. Alexander. One other question. You spoke of their filling in 
on the Canadian shore between Table Rock and the present flow of 
water. Did the water ever go over that part of the Canada Falls 
between Table Rock and where the water now flows? 

Mr. Dow. Yes, sir ; over all that part, as I understand it. 

Mr. Alexander. Did you ever see it go over there? 

Mr. Dow. Yes, sir ; when I was a boy. 

Mr. Alexander. Hoav long ago? [Laughter.] 

Mr. Burgess. I object to that. 

Mr. Dow. More than sixteen years. I don't know. These gentle* 
men can tell when the Table Rock fell. Do you know, Mr. Porter ? 

Mr. Porter. I think it was about 1840. 

A Witness. Oh, no; I saw it. 

Mr. Porter. Charles Dickens speaks of it. 

Mr. Dow. Charles Dickens was in this country in 1848, was he not? 
He made several visits, one visit was in 1848. I remember going there 
when I was a boy and being out on it. 

Mr. McFarland. I have it here, Mr. Chairman. A part of the 
■ Table Rock fell in 1850 and most of the remainder in 1867. 



172 PEESERVATION OF NIAGARA FALLS. 

STATEMENT OF MR. CLINTON ROGER WOODRUFF, SECRETARY 
OF THE AMERICAN CIVIC ASSOCIATION. 

Mr. "Woodruff. The question asked by some member of the com- 
mittee in regard to the observation of those who have seen the falls 
with considerable frequency, as to whether there had been any diminu- 
tion noticed, reminds me of Holmes's poem " The One-Horse Shay." 
I believe the deterioration of that historic vehicle was not noticed, 
but it went all of a sudden; and I doubt whether any of us are 
sufficiently close observers to tell whether the falls deteriorate from 
time to time; but I gather from the testimony 'on behalf of the power 
companies by the engineers that it is pretty sure that if there is not 
a stop j)ut to the taking of water for the creation of power the falls 
will be diminished if not entirely destroyed. I do not think there 
has been any dissent as to that general proposition. There may 
have been, but I think there is considerable doubt as to when that 
point may be reached. There is great diversity of opinion as to the 
engineer and his observations, and some as to the extent of investiga- 
tion. 

But there is one point, Mr. Chairman and gentlemen, that I want 
to dwell upon as emphasizing a line of thought that was suggested 
by former Attorney-General Griggs, and that is the paramount 
rights of the public in this great natural wonder. We are living in 
a day and generation when the rights of the people as such are 
being considered as never before. All over the country we hear and 
see the agitation in behalf of the rights of the jDeople manifesting 
itself in the municipal-ownership movement and in the right of the 
people to be heard in the arbitration of the differences arising over 
the mining question, and in all these things the paramount rights of 
the public are and must be considered above all things. 

Here we have the most tremendous of all spectacles. There is no 
doubt in the mind of anyone who has been before this committee as 
to the grandeur of this wonder; that it is unparalleled not only in 
our own country, but in the world, and there is no difference of 
opinion whatever concerning the fact that it is a national heritage. 
Now, I do believe that before there should be anything done or per- 
mitted to be done on the part of any further companies or existing 
companies we should stop and consider very carefully what the 
rights of the people are in this great wonder. 

I think that the bill which your chairman has so carefully drawn 
is based upon sound public policy, because it puts a stop to further 
diversion of the water, and therefore you stop all further spoliation 
of the falls. In the second place, it places the granting of furtiier 
permits in the hands of an executive officer who has skilled scientific 
investigators and advisers at his hand; and that is the point to which 
Mr. Griggs referred — that this matter should be settled by executive 
determination and not by legislation. You gentlemen, as the custo- 
dians of the rights of the American people, seeing that further depre- 
dation of the falls is going to result sooner or later in their destruc- 
tion, certainly as a scenic wonder and perhaps in other respects, al- 
though those aspects are not before us in connection with this bill, 
should see to it that there should be no further depredation. Now, 
here we have this situation. I doubt if there has been any measure of 
a public character that has called forth more general comment from 



i PRESERVATION OF NIAGARA FALLS. 173 

eveiy part of this country. It has been my fortune, as the secretary 
of the American Civic Association, to be in receipt of the various 
communications that have been prepared on this subject. 

There is not a single State in this country that i^ not represented 
in the demand for the jDreservation of the falls. From far-off San 
Francisco, before she was struck by this terrible disaster, from Seattle 
and Tacoma, on the northern coast, from the Middle AVest, from the 
South, and from the East, and from every part of the country with- 
out excei^tion, comes the words, " Save Niagara." The protest comes 
not only from the women, but from the men ; not only from the pro- 
fessional men, but from the business men. You have heard what the 
Chamber of Commerce of New York has to say on this subject. 
Other business bodies, like the Chamber of Commerce of New Orleans 
and the Chamber of Commerce of Los Angeles, also send their pro- 
test. I cite those simply for the localities they represent, although 
they are tjq^ical and by no means exceptional. We find this general 
demand, and so far as I know, there has been no voice of protest 
raised against the saving of Niagara except b}^ those who are finan- 
cially interested in the use of this water, and I think that is a matter 
that should be borne in mind ; not onl}^ that we find that the demand 
grows, but that the demand comes not only from those who know 
Niagara and love it, but from those who have never seen it, but hope 
that some time they may be privileged to, or that their children may. 

From the far inland towns it has been a surprising thing to find 
how deep seated is this demand and how universal that Niagara be 
saved, and I ask you in the name of these people who have manifested 
this interest by writing to you, hj w^riting to the President, by writ- 
ing to newspapers, and by taking corporate action in the different 
organizations that they are connected with, to give to that sentiment 
which is so strong and growing so rapidly the recognition which it 
deserves. You have evidence before you that will satisfy you, I am 
sure, when you come to discuss the engineering features. It is, as I 
said in the opening, generally conceded that there is a point beyond 
which you can not go in safety, Avhether there is evidence to determine 
that exactly or not; but the Burton bill places the determination of 
that in tlie hands of competent Government officials, and it is wisely 
drawn, because it stops diversion at the present point and makes 
further depredation a matter for the determination of one who can 
accurately inform himself in regard to it, and I sincerely hope that 
the bill will be reported by you, and as committed, and that there 
w'ill be behind it the force of a unanimous indorsement, because 
this is essentially a movement of the people. I speak without fear 
of successful contradiction when I say that there has not been lodged 
with any member of this committee a protest of anj^ public-spirited 
body or any grouj) of men, except those who have financial interests, 
against the passage of this bill, and it seems to me that that fact ought 
to have tremendous weight in securing not only affirmative action, 
which I anticipate, but such unanimous action that there will be no 
question for the future or the present as to the saving of Niagara 
Falls. 

Mr. Alexander. "\Miat is the association of which you are secre- 
tary? 

Mr. WoDDRUFF. The American Civic Association. 

p N F— 06 12 



17-1 PRESERVATION OF NIAGARA FALLS. 

Mr. Alexander. You have told lis of the great number of organiza- 
tions in different cities, from far-off Los Angeles, and so forth, which 
have reported through correspondence to you. What have your 
duties been as secretary — to write these people and get expressions 
from them? 

I\Ir, WoDDRUFF. I shall be very glad to answer that. At the 
Cleveland meeting of the American Civic Association a series of reso- 
lutions was introduced calling upon the association to take steps for 
the preservation of Niagara. Those resolutions were telegraphed 
to the President of the United States and to the governor-general 
of Canada, and the President of the United States at once referred 
'the resolutions to his Attorney-General, who prepared an opinion in 
regard to the feasibility of the plan suggested. That action brought 
out^ such a g.meral call for further organized effort that we trans- 
mitted it to all our members, spread all over the country and repre- 
senting all the various States, and then we secured the cooperation of 
practically all of the leading magazines represented in the American 
Periodical Publishers' Association, who gave us the full-page adver- 
tisement which you see here without a single cent of compensation. 
All the work that has been done thus far has been done freely and 
without any return other than that which comes from doing a public 
duty. 

Mr. Bede. I would like to ask you one question. I am quite in 
sympathy with the preservation of the falls. Chicago has a drainage 
district of two or three million people, and the population is rapidly 
increasing. Certain rights have been granted at Niagara already 
which we can not change. Now, if it came to a contest between the 
health of Chicago and the scenic beauty of Niagara Falls, what 
would you say in that case ? 

Mr. 'WoDDRUFF. I would like to say this, that if we were face to 
face with a disaster like that, or were up against the margin of 
existence, then we would be justified in using the power of Niagara 
or anything else that we had or could get ; but we have not reached the 
point where the falls are in any such jeopardy as that. 

There is another point. It has not been testified that there has 
been any cheapening of the power to the consumers. It is merely a 
commercial venture. 

Mr. Bede. There was testimony as to the cheapening of the power. 

Mr. Jones. There has been a project at Buffalo with a reduction 
from $05 to $56. 

Mr. '\^^ooDRU^F. Would not that reduction be made anyway whether 
the falls were used or not? For instance, in Philadelphia the price 
of electricity has been reduced from $110 to $00. 

Mr. Bede. That was a result of the recent election. 

Mr. Woodruff. It was the result of the people sj^eaking. 

INlr. Bede. They testified that they could furnish power for $20 a 
year, I believe. 

Mr. Woodruff. I do not know personally, but Mr. McFarland has 
told nie that there has been no substantial reduction to the consumer 
as the result of the utilization of the Niagara power. Competition 
may reduce the price. 

Mr. Lawrence. You speak of the president of the Chamber of Com- 
merce of Buffalo. He has said tliat their only hope of getting cheap- 
ening of power was through the importation of power from Canada. 



PRESERVATION" OF JSTIAGARA FALLS. 175 

Mr. WooDRurr. I have heard that argument along other lines, but 
I never have been convinced that it was a sound policy to follow. 

Mr. Davidson. When you refer to the cheapening of the product to 
the consumer, you mean the article produced ? 

Mr. Woodruff. Street-car fares or lighting in your house or my 
house. 

Mr. Davidson. But the products which they manufacture through- 
out the country are not any cheaper? 

Mr. Woodruff. To the individual consumer? 

Mr. Davidson. Yes. 

Mr. Woodruff. I do not know, nor have I heard any statement as 
to the cheapening of power to the large consumers or manufacturers, 
but I mean a cheapening to the man wdio uses the street cars or the 
electric lights in his house or for personal purposes. 

Mr. McFarland. I would like to say — and Colonel Alexander can 
correct me if I am wrong— that the city of Buffalo pays as high as 
$75 a year for 20,000-candlepower arc lights for its streets. 

Mr. Woodruff. The city of Harrisburg pays $46.50 for the same, 
from coal; and I pay 5 cents for car fares in Buffalo, as you gentle- 
men do, while here you get six tickets for 25 cents, one being by the 
power derived from Niagara, which is supposed to be cheap, and the 
other derived from coal. 

Mr. Alexander. In Buffalo we paid $75 an arc light, but recently 
Ihey have reduced it to $5G. 

Mr. Davidson. They have made a proposition to furnish then! for 
$56. 

STATEMENT OF MR. CHARLES L. HITT^TTLEY, VICE-PRESIDENT OF 
THE CATARACT POWER AND CONDUIT COMPANY. 

IVIr. Huntley. The price is $56, and that has been accepted by the 
common council. I speak authoritatively, and not by hearsay, be- 
cause I am in charge of the situation absolutely, having made the 
contract myself. 

Mr. Davidson. "NA^ien was that contract made? I want to get your 
testimony. 

Mr. Huntley.- It w^as proposed last Thursday. 

Mr. Davidson. I understood that the proposition had been made. 

IMr. Huntley. The proposition has been accepted by both branches 
of the common council. Both bodies have accepted the proposition 
for the reduction from $75 to $56 a year beginning March 1, 1907, 
and running for five years, with an abatement on the rate from June 
1, 1906. to the expiration of the contract, and the kilowatt price has 
been reduced from 12 to 9 cents maximum. 

The Chairman. To the private consumer? 

Mr. Huntley. Yes, sir. 

Mr. Lawrence. I understood the president of the Chnmberof Com- 
merce of Buffalo to say that their only hope of what they call cheap 
power was through the competition that would come tlirough per- 
mitting power to be imported from Canada, and I have had sent me 
resolutions from the cit}^ council and the chamber of commerce which 
protested against that importation. Now, has this reduction you 
speak of on city lighting come about through that competition? 



176 PEESERVATION OF NIAGARA FALLS. 

Mr. Huntley. No, sir; it is for the reason that the Government 
has a right to construct the line from Lake Erie. We are utilizing a 
portion of the power that is being made at Niagara Falls. 

The Chairman. Do you represent the same company as General 
Griggs ? 

Mr. Huntley. No, sir. 

The Chairman. Which is your company ? 

Mr. Huntley. The Niagara Falls Power Company. It is both 
sides. 

The Chairman. What is the name of the company on the Canadian 
side? 

Mr. Huntley. The Canadian Niagara Falls Power Company. 

Mr. Bede. Some of thjs power will, as a matter of fact, come over 
from Canada? 

Mr. I-IuNTLEY. Yes, sir; we expect to deliver it by the 1st of 
August. 

Mr, Davidson. Then the president of the chamber of commerce was 
practically correct when he said that it was by reason of this com- 
petition you were making this reduction? 

Mr. Huntley. Yes, sir. 

INIr. Davidson. And were it not for your ability to bring in power 
from Canada, the reduction would not hnve been made? 

JNIr. Huntley. I would not say that. We would not have done it 
anyway. 

Mr. Davidson. Then Buffalo would get the benefit of cheap power 
even though this bill was not presented ? 

Mr. Huntley. Yes, sir. 

Mr. McFarland. How cheap that power is you can understand 
when I tell you that that lighting in Harrisburg, Pa., is done for 
$47.50. I would recommend that the gentleman move from Buffalo 
to Harrisburg. 

Mr. Huntley. How much power do you use? 

Mr. McFarland. I have tw^o or three hundred horsepower. 

Mr. Huntley. I will sell you all that you want in the city of 
Buffalo at a cent and a half a kilowatt. 

Mr. McFarland. You had better publish that. 

Mr. Huntley. It is our published rate. 

The Chairman. "VAHIiat is your rate for electric power? 

Mr. Huntley. The small users of power pay from G to 4 cents up 
to 10 horsepower. There is a miximum rate of 25 cents. We begin 
at 1 cent and go to 9 cents per kilowatt hour. 

The Chairman. The electric light is measured by kilowatts? 

Mr. Huntley. Yes. The maximum price is 9 cents, and that goes 
to 3 cents, according to consiuiiption. 

The Chairman. What do you mean by that? 

Mr. Huntley. Those who use the most get the lowest rate. 

The Chairman. Is not that unusual ? 

Mr. Huntley. No, sir; that is very usual. In your own city — • 
Cleveland — it is the same as in Buffalo. The largest consumers get 
the lowest rate. 

Mr. Davidson. That is light or power? 

Mr. Huntley. Light and power; the largest consumers of power 
get the lower rate. 

Mr, Davidson. It does not apply to residences, does it ? 



PRESERVATION OP NIAGARA FALLS. l77 

Mr. Huntley. Yes, sir. 

Mr. Davidson. Nine cents is the maximum rate ? 

Mr. Huntley. Nine cents is the maximum rate, and that goes to 
4 cents if they use six hours out of twenty-four. 

Mr. Ellis. Is there an economic reason for that? 

Mr. Huntley. Yes, sir. 

Mr. Ellis. It does not rest on the princij)le that to him who hath 
shall be given ? 

Mr. Huntley. No, sir ; not at all. 

Mr. Ellis. Can you furnish it more economically ? 

Mr. Huntley. Yes, sir; the lights are all arranged for the small 
users. I will give you an illustration : We burn natural gas for light 
and heat in BufTalo to quite an extent. My neighbor uses natural gas 
for his entire outfit, and burns no coal. There are the same meters, 
and the same service goes by his residence as goes by mine. I use it 
for cooking purposes. He will use 150,000 cubic feet a month, and I 
will use 30. He is therefore entitled to a less rate, or I should pay 
more. 

In regard to the electric light, the transformer is there, and the in- 
vestment is there, and if he uses a light ten or eight hours and has a 
high load, he is justly entitled to a lower rate. And at certain hours 
of the twenty-four it is always cheapest to furnish current. All elec- 
tric light companies can furnish light cheaper in the daytime than in 
the night; consequently we sell a day load cheaper than a night load. 

The Chairman. This shows how difficult it is for us to rely on any 
figures giving the rate for power or lighting, because of the shifting 
t-cale, according to the quantity consumed, which is very different in 
different cases. 

Mr. McFarland. I would say that we would be very glad to put in 
an economic argument, but we did not come here this morning for 
that. We have been trying to present this subject from the scenic 
side, and I would like to introduce next Mr. Hall. 

STATEMENT OF MPv. EBWAEB HAGERMAN HALL, SECEETAEY OF 
AMERICAN SCENIC ASSOCIATION. 

Mr. Hall. IMr. Chairman and gentlemen, the society which I 
represent by the authority of the trustees has a quasi-official standing 
in the State of New York, and although it is a national organization, 
it has a special charter from the State. It is subject to make an 
annual report to the legislature, and it is the custodian for the State 
of one and probably at this time of three State reservations. Mr. 
Andrew H. Green, who was the father of Greater New York, and 
who was our late president, was the father, so to speak, of the legisla- 
tion which created the Waterways Commission, whose recommenda- 
tions you are considering. 

The Chairman. That is a different organization from this present 
one. This Waterways Commission that has been reporting here is one 
created by an act recommended by this committee, passed in June, 
1902 ; and then there was another, called the Deep Waterways Com- 
mission. Is not that the one to which you refer ? 

Mr. Hall. Possibly I am mistaken, but I remember that Mr. 
Green proposed this idea through Senator Piatt, and I think it 



178 PRESEEVATION OF NIAGARA FALLS. 

passed one House and failed in the other as an independent bill, and 
then it was embodied as a part of the river and harbor bill. However, 
I do not make any point on that. Indeed, what I can say this morn- 
ing would not begin to cover the subject, but is rather a token or 
symbol of what should be said. It seems to me that this question 
orders itself about like this in my mind. There are three proposi- 
tions. One is, are the Falls of Niagara in danger? And, if they are, 
has Congress jurisdiction to avert that danger? And, if Congress 
has, is Congress justified by the prevailing intelligent sentiment of 
the people of the country, which must be the criterion for the proper 
legislation under a democratic form of government ? 

Now, under that first subject, the danger to the falls, it seems to 
me that the statement of the Waterways Commission in section 26 of 
their report is Avell borne out. There is a certain mean volume to the 
falls there. You can compute how much is to be diverted, and you 
know how much is left. That is a physical proposition. The next 
question is, is it appreciable. Now, so much has been said on that 
Ihat I would like to say just one word. Appreciable by what sense? 
You generally mean the sense of sight. If you had a pail of water 
18 inches deep — and I use 18 inches because cakes of ice 18 inches thiclc 
have been known to lodge going over the American Falls — and you had 
that pail filled to the top, and you lowered the water 1 inch, you 
w^ould appreciate it, because you w^ould have all the data in your 
field of vision. You would have the top of the pail and the space 
between the top of the pail and the surface of the water, and you 
would know, that 1 inch was gone. If you take an inch off from 
Niagara Falls you may not appreciate it at first for the reason that 
the criteria are spread over so vast an area that you can not get them 
all into your field of vision. The crest of the American Falls is over 
1,000 feet long. But if you take off an inch, that inch is gone just 
the same, and if you take off another inch, that is gone just the same. 
If you are out at sea, the tide rises, say, 10 feet, but you do not notice 
that because you are away from land and you have not the data for 
comparison and you do not appreciate it. 

Now, if you extract water from the Niagara River, of course it is 
gone, and it may not be appreciable by the person who goes there 
very rarely, or only once, but it is gone, and if you take out more, 
that is gone, and by and by you can get to the bottom of it. The 
thing to do is to stop it now before you get to the bottom. The man 
who falls off a roof does not realize his full grief until he strikes 
bottom. But when he stri]<:es bottom he realizes that if he had not 
fallen the first foot, he would not have struck bottom. One of the 
members of the committee asked whether, if more water was drawn 
to the American side, this diversion would affect the volume of the 
falls. The answer occurred to me that if the water were drawn to 
the American side to be diverted, of course it would not benefit the 
falls at all, if it were simply to he drawn over to be taken out. 

As to the legal questions, I will not say anything. 

Now, as to being justified by public sentiment, the State commis- 
sion on Niagara was created some time ago in response to the most 
extraordinary e'xpression of sentiment that has ever been made. It 
Avas on a petition which has been rei^orted by the commission for 
1903, I think, a petition addressed to the governor of New York and 
the Governor-General of Canada, which was signed by a phenomenal 



PEESERVATION OF NIAGARA FALLS. 179 

array of names of the greatest jurists and statesmen and poets and 
writers in all walks of life that I think have ever signed a public 
petition. They represented, if any high and intelligent sentiment 
could, the best sentiment of this country, and I should say that it also 
embraced similar representatives of Canada and Great Britain. 
That sentiment has grown, and we believe that it is so universal that 
you are justified in respecting it. That sentiment is based on three 
things— on the scenic grandeur of Niagara Falls, on its historic in- 
terest, and on its geological or scientific interest. I will not say 
anything about its scenic grandeur, Emerson says there are some 
things you can not describe. One of the reasons why it is famous all 
over the world is this : It was first seen by Father Ilemiepin, in 1678, 
who was a companion of La Salle in his effort to roach the Mississippi. 
Father Hennepin gave the first description of Niagara Falls. His 
descriiDtion went through thirty-five editions in the different lan- 
guages of the Old World, and it spread the fame of Niagara Falls 
abroad, and it became known as the first great scenic beauty of 
America, and so the fame has spread; and it has continued until, as 
Mr. Dow has said, it has reached even the Orient, and Mr. Dow could 
tell vou that when the Chinese viceroy was there he clapped his 
hands together and just jumped up and down in uncontrollable 
ecstacy over the wonderful beauty of Niagara Falls. I think that is 
a striking instance of the effect of these falls on the beholder. 

Niagara Falls has a value from the standj^oint of geological 
science and should be preserved for that reason. You know, of 
course, that it was born about 7 miles to the northward, on the re- 
treat of the glacier, and it has been retreating since then. Now, if 
you can calculate the time that it has taken to recede you can get 
approximately at the age of man, because the earliest relics of man 
aro found in glacial de])Osits. Certain computations have been made, 
but they vary in this, that the computations as to the recession of the 
falls have been made at rare intervals and only recently. There is 
also a dearth of collateral geological information; but that informa- 
tion is accumulating, and the longer you can keep Niagara Falls the 
more full and perfect these data will become. 

Niagara Falls should be preserved for its scenic beauty and for its 
value to science and for its historical interest. 

]Mr. Alexander. We had some evidence that if a less amount of 
water went over the falls it would preserve them; that the great 
amount that goes over the Horseshoe Fall is cutting back the cliff at 
the rate of about 5 feet a year. 

Mr. Hall. You would draw away the water and preserve the 
cliff, you mean, not the falls. [Laughter and applause.] 

Mr. Alexander. Your geological theory as to the preservation 
goes to the cliff as well as to the falls. 

Mr. Hall. No, sir; we preserve the falls and we are perfectly wil- 
ling to let the falls recede at its present rate, which has been esti- 
mated at about 3 feet a year, and we think that none of us or our 
respective children or gi^andchildren will be deprived of the great 
sight there. 

As to this bill, our society thinks it is a good bill. The only 
suggestion practically that we have to make is as to section 6, where 
it says that the provisions of this act shall remain in force for three 



180 PEESEKVATION OF NIAGARA FALLS. 

years from and after date of its passage. "VVe think that that period 
couki be extended to ten years without doing any injustice. 

If the third section is adopted, as to the transmission of power from 
Canada to the United States, prohibiting that transmission, you will 
protect Niagara Falls very largely, because, as I understand, the 
market for the power generated on the Canada side is expected to be 
on this side, and if you will prevent the exportation of power to this 
country you will deprive the Canadians of their market and control 
their output. 

There is another suggestion that I want to make, with deference to 
the committee. Perhaps you have called some military experts 
before you, but if you have not I would suggest that you do so 
when you are considering the navigability of the stream and the 
protection of the frontier. I remember the famous " Battle of the 
Casks," in the Revolutionary war, when casks of gunpowder were 
floated down the Schuylkill. Now, it seems to me that so long as 
there is water there it possesses a military value in some ways that I 
can not think of offhand. 

As to the diversion at Chicago, I think I agree with the other 
speakers that public health is paramount to aesthetic gratification, 
but it should be borne in niind that science is now discussing methods 
of disposing of sewage other than that of dumping it into your 
neighbor's waters, and it is possible that the disposition of it may be 
made profitable. 

ADDITIONAL STATEMENT OF ME. DOW. 

IMr. Dow\ Mr. Chairman, I ap]iear now as representing the Cham- 
ber of Commerce of the State of New York. I have here the recom- 
mendation of the committee on internal trade and improvements to 
the Chamber of Commerce of the State of New York, which commit- 
tee consists of the following gentlemen : 

A. Barton Hepburn, Cleveland H. Dodge, George Gray Ward, 
Thomas P. Fowler, Frederick D. Underwood, Charles A. Schieren, 
and Perry P. Williams. 

This recommendation reads as follows : 

In the pliPiiomena of nature the Falls of Niagara easily take first rank in 
beauty, grandeur, and magnificence. They are the Mecca of sight-seers and 
pleasure seekers among our own people and easily connnand the first interest 
of travelers from abroad. IMany years ago the State of New York made a 
reservation of all that portion of the falls lying within the State, and sought 
thereby to create a perpetual park for the recreation and enjoyment of the 
public. The huge volume of water which constitutes this cataract possesses 
enormous power, which appeals in no small degree to the conmiercial interests 
and possesses enormous value. Many enterprises exist and many more are 
projected which seek their motive power by taking the water from the Niagara 
River above the falls, which again joins the river through some raceway below 
the falls. This necessarily reduces the flow of water over the precipice and 
impairs the beauty and loveliness of this great boon which nature has placed, 
partly within our borders. 

The Fresident discussed this subject in his message. He said that " nothing 
should be allowed to interfere with the preservation of Niagai-a Falls in all 
their beauty and majesty. If the State [of New York] can not see to this, 
then it is earnestly to be wished that she should be willing to turn it over to 
the National Government." 

The governor of the State discussed the matter at length in his annual mes- 
sage, setting forth the menace to the falls in the rights already conveyed to 
existing corporations, and suggesting a method of limiting the danger and a 



PKESERVATIOISr OF NIAGARA FALLS. 181 

means for the protection and preservation of their grandeur and beauty : There- 
tore, be it 

Resolved, That the Chamber of Commerce of the State of New York cordially 
approves the position taken and the sentiments expi'cssed by President Roose- 
velt and Governor Pliggius with reference to the desirability of protecting and 
preserving Niagara Falls in all their grandeur and beauty. 

Resolved, That the chamber protests against the enactment of any legislation 
calculated to imperil this great scenic phenomena. Commercial interests should 
go elsewhere for mechanical power, and this great source of enjoyment and 
pleasure should be preserved for this and succeeding generations. And be it 
further 

Resolved, That the president of the chamber be authorized to appoint a spe- 
cial connnittee of three to take such further action as may be deemed necessary 
in the premises. 

There has been no meeting of the chamber since this bill has 
been before yon. The chamber of connnerce, as you probably know, 
was organized in 17G7, I believe, and is the most powerful commercial 
body in the world, and the most influential. 

Mr. McFarland. JNIr. Chairman, we will close our case — the art 
side of it — by presenting to you Mr. Charles K. Lamb. But before 
Mr. Lamb addresses you I w^ant to tell you a story of a man Avho 
wanted to hire a coachman, one time. He asked all the candidates 
who appeared for the position how close they could drive to the edge 
of a precipice. One could drive within a foot of it without going 
over it and another within an inch, and there was another fellow who 
said he thought that he could skate around there with one wdieel in 
the air over the precipice. Finally another fellow said that he would 
hug the inside of tlie road as close as he could; and that was the man 
that he hired. And I submit that to your consideration on the 
question of the advisability of not running any risks in regard to 
Niagara Falls. 

STATEMENT OF MR. CHAELES ROLLISON LAMB, PEESIBENT OF 
THE MUNICIPAL ART SOCIETY, OF NEW YORK. 

INIr. La:mb. I am not here to argue either pro or con for the elec- 
trical questions, as to what can be secured from Niagara as to horse- 
power or as to kilowatts or any of the technical terms of the other 
gentlemen ; although, incidentally, it seems to me that if you would 
prohibit them from taking water from the river above the falls, our 
American ingenuity would find some way of utilizing the power of 
the current below by turbines, which would take the side rush of 
the water, or in some way use that power. I am speaking to you of 
what the American people think of it. 

The Municipal Art Society is only one of over 800 organizations, 
increasing each year, which represents certain definite ideas of the 
community as to the beautification of their surroundings. I am 
speaking for the members of the Municipal Art Society of New York. 
Part of our work is to help the city of New York put up a monument 
to the late Andrew H. Green, because he helped not only to make 
our great Central Park at one end of the State, but to make the 
Niagara reservation at the other end of the State, and we honor and 
venerate Green for both sides of his work. 

Beauty is a quality that commercialism does not recognize in many 
ways, and yet beauty has a definite financial aspect. You go abroad 
and you visit your Paris and your London and you go down and see 



182 PRESEKVATION OF NIAGARA FALLS. 

Eome and Florence, and you are expending your good money to see 
what? To see things bni'lt by people who believed in making cities 
beautiful. And Paris coins money to the millions of dollars a year 
because it is considered worth while. 

Washington has a record of which you are all proud. You gen- 
tlemen, probably, on other committees, carry forward the good work 
of making Washington more and more beautiful; and yet before the 
first President and' L'Enfant laid out Washington Niagara was car- 
rying out its purpose of impressing on the minds of the American 
people this love of beauty. And it is that love of beauty, it is that 
power, which you are calling upon for every appropriation made 
either here by the great Central Government or in your cities and 
home towns and your little village improvement societies. You can 
not get something from nothing ; neither can you have a public opin- 
ion or belief in beauty if it is not educated. And Niagara is one of 
the greatest natural educators in the cause of public beauty that we 
as a nation possess. 

I was dining with a prominent manufacturer in one of the midland 
counties in England, and I was saying that my home was on the 
crags of the Palisades above the Hudson, and that I went into the 
city every day and back again to my home in the evening, and he 
understood that. Then he turned to me most naively and said : " I 
suppose, Mr. Lamb, you can hear the falls ; " and I pulled myself 
together and tried not to smile, and I said : " Oh, no ; you have to go 
up the river a little farther," and let him down as easy as I could. 
And each time that I think of that incident I think that the fall of 
Niagara and the sound from it has been heard 6,000 miles — 3,000 
miles to England and 3,000 miles across our continent — and the re- 
verberation of Niagara is in the ears of every American citizen. And 
it is for you gentlemen here, as representing us all, to remember that 
fact and listen. 

(At 1 o'clock p. m. the committee adjourned.)^ 



House Committee on Rivers and Harpors, 

Prospect House, Niagara Falls, N. Y., 

Ajrril 27, 1906. 
Present: Hon. T. E. Burton, chairman; Hon. D. S. Alexander; 
James H. Cassidy, Esq. 

The chairman announced that interested parties would be heard, and 
Mr. Sanford T. Church, of Albion, district attorney of Orleans County, 
spoke as follows: 

STATEMENT OF SAHFOED T. CHURCH, ESQ., DISTRICT ATTORNEY 
OF ORLEANS COUNTY, N. Y. 

Mr. Church. I am from Albion, Orleans Count}^ N. Y., and rep- 
resent Albion and llolley, in the same county; also Brockport and 
Middleport. Of those four places, three of them now are lighted by 
electricity furnished b}' the Albion Power Company, a local corpora- 
tion, which has already constructed several transmission lines, in all 25 
or 20 miles, with the idea of ultimately getting its power from Niagara 
Falls through the Electrical Development Company, or its Amei'ican 
company, the Niagara Falls Electrical Transmission Company. 



PEESERVATION OF NIAGARA FALLS. 183 

Holley is on the way between Albion and Brockport. and while these 
places are all villages, yet we consider them something more than mere 
i^pots on the map, Albion having a population of something over 
5,000, Holley about 2,000, Brockport nearly 5,000, and Middleport 
somewhere in the neighborhood of 1,500 to 2,000, 1 think. In the 
village of Holley the Albion Power Company has a franchise for the 
distribution of power, but the village itself has a nnmicipal lighting 
plant, so the power company does not light it, although they are look- 
ing forwai'd there to making a contract with the power company as 
soon as Niagara Falls power is available. 

The county of Orleans is largely a fruit county, and they have been 
having their eye on this electrical sun, as it were, when this bill hove 
in sight and bid fair to eclipse what to them was to be the solution of 
a probleu). viz, the problem of keeping their fruit. The Al))ion Power 
Company has to-day live or six customers in the line of cold storag-e, 
they furnishing the power for the development of the artificial plants 
which generate cold, and thus keep the fruit. In that way the farmers 
of our locality are deeply interested in having electrical power dis- 
tributed throughout our section, and while, of course, we feel that the 
beauty of the Falls should be preserved, yet at the same time we do 
feel that as long as the Canadian government has authorized the devel- 
opment of electrical power, that that development should not be con- 
fined to Canada, but that Americans as well as Canadians should be 
given the right to use what power may have been authorized in Canada, 
because we feel that no matter whether there is an available market 
near by now in Canada, that the men who have spent the amount of 
money that has been spent in the development of power plants on the 
Canadian side will find a market for that power somewhere in Canada 
if they are kept out of the United States; and it is not alone on account 
of the fruit industry and on account of the many enterprises which 
now take power from the Albion Power Company, and which are look- 
ing forward to the time when they shall obtain their power from 
Niagara Falls, that we feel that we want this power brought down to 
us. All)ion has had for years, and when I speak of Albion it includes 
also Middleport, Holley, and Brockport, but one railroad. 

We have been at the merc}^ of that one railroad as to our shipping 
facilities. There has now been organized a railroad running east and 
west, paralleling the Falls i)ranch of the New York Central Railroad, 
and that road will undoubtedly be built if power can be obtained from 
Niagara Falls for its operation. If that power can not be obtained, in 
rii.v judgment it will mean a death blow to that road, which has been a 
cherished prospect for all our citizens for a great many years. Besides 
the east and west road there has been incorporated a north and south 
road which is to connect Batavia, which lies 18 miles south of Albion, 
with Lake Ontario, where there is an excellent harbor known as Oak 
Orchard Harbor, and this north and south road has been incorporated, 
and if electricity is available from Niagai'a Falls will unquestionabl}- 
be built, thus opening up the roads that run south from Batavia into 
the coal districts to all that northern country and giving: a harbor on 
Lake Ontario. Besides that, the Albion Power Company has entered 
into various contracts with municipalities on the strength of this pro- 
posed transmission of power. No later than last spring the village of 
Brockport entered into a five-year contract, and one of the inducements 
that was ofiered and one of the things that was held out was that there 
would soon be power available from Niagara Falls. 



184 PBESERVATIOISr OF NIAGARA FALLS. 

Kow, ^e feel that it will be a cripplino- of not only all the indus- 
tries that are established there, not only of the fruit interests of 
Orleans County, but also of numerous other industries that are pro- 
posed. Corporations have been organized, there has been a general 
revival and an interest in business throughout that section since it was 
learned that we w^ould have this power at our command, and we saw 
no reason wh}'^ these smaller places between here and Rochester should 
not grow as has grown Niagara Falls, and should not be the center 
of enterprises such as exist here to-day. We believe that a bill such 
as this, which imposes upon the American citizens, as we believe this 
does, the right, or takes away from them the right, to bring into this 
country electric power which is bound to be developed in any event is 
an injustice to the community which would have the benefit of that 
power. 

We believe also that your committee, having come here to day and 
having seen the condition of affairs at Niagara Falls, will know that a 
great deal of this talk about saving the falls is in a" sense hysterical. I 
was surprised — I read in man}" magazines that the falls were practically 
dry, and I had come up to look at them to convince myself that they 
were in the condition that they are to-day; and we believe that this 
committee on careful consideration of all these facts will see that not 
only Niagara Falls but the entire community of western New York 
will be benefited by striking out at least that portion of this bill which 
debars from the United States the importation ot" electrical current 
which has already been authorized. 1 thank 3^ou, gentlemen. 

The Chairman. What is the total amount of power already con- 
tracted for to be brought in from Canada? 

Mr. Church. By what company do you mean ? 

The Chairman. These companies at Albion and the other towns 
that you mention. 

Mr. Church. In horsepower? 

The Chairman. Yes. 

Mr. Church. I am unable to give that to you, because I am not 
familiar enough with the situation. We have contracted at Brock- 
port, Middleport, and Albion, the three municipal contracts, and for 
the Western House of Kefuge for Women, in Albion, besides our pri- 
vate lighting; and there is- also a small village, to which we have a 
transmission line, that has 350 inhabitants, I think — the small village 
of Gaines — and the village of Holley, for which there is a franchise. 

The Chairman. Have either you or those whom you represent 
given any consideration to the subject of how much water might be 
withdrawn from the river without serious injury to the falls as a 
scenic spectacle. 

Mr. Church. We have not given consideration to it in cubic feet. 
In our belief the amount that has been already withdrawn from the 
falls is not perceptible to the eye of the ordinary observer. 

The Chairman. What proportion do 3'ou estimate is that which i^ 
now being taken to that which is under contract or franchise? 

Mr. Church. Roughly estimated, I should suppose it was about 
one-sixth. 

The Chairman. That is, 3'ou think six times as much as that which 
is now being taken could be taken without injury to the falls? 

Mr. Church. I should think so. 

The Chairman. How is it in regard to the farmers in your county, 



PEESERVATION OF NIAGARA FALLS. 185 

which would they prefer, the additional facilities afforded by the use 
of power or the continued existence of the falls? 

Mr. Church. Well, if it came to a question of the continued exist- 
ence of the Falls, it might be they would prefer the continued existence 
of the Falls. 

The Chairman. Suppose it was a question between some additional 
facilities such as would be afforded by electricity and taking- away half 
the water of the Falls, which would be their preference then? 

]\lr. Church. Well, if the half were not visible to the naked eye, I 
do not think it would make an}- difference to them. 

The Chairman. Have they given any careful consideration, or have 
you, to what would be the effect of taking away a third or a half of the 
water ? 

Mr. Church. No; I do not think they have. 

The Chairman. Has any one of those with whom you have talked 
given any careful considei'ation to that subject? 

Mr. Church. I doubt their having given careful consideration as to 
the amount of water taken away or the amount that would be neces- 
sary. They have had the general belief that this development of 
power here woidd not take away sufiicient water to injure to any appre- 
ciable extent the scenic beauty of Niagara Falls. 

Mr. Alexander. You do not represent a power company? 

Mr. Church. No. 

Mr. Alexander. Simpl}^ a transmission company? 

Mr. Church. I do not represent a transmission company- 
Mr. Alexander. You simply represent these townis that desire to 
get power? 

Mr. Church. That is all. 

Mr. Alexander. As I understand 3'ou, they have made no conti'act 
yet with any power company ? 

Mr. Church. They have made a contract with the transmission 
company — the local power company has made a contract with the 
transmission company to obtain its electric power through them. 

Mr. Alexander. You do not know about how man}^ horsepower 
they have contracted for? 

Mr. Church. No; I do not, 

Mr. Alexander. How long ago did they make this contract? 

Mr. Church. About a year ago; and I understand also that the 
transmission company has a contract with the railroad company which 
is proposed to run east and west, and also has under negotiation a con- 
tract with the north and south railroad company to run from Batavia 
through Albion to Lake Ontario. 

The Chairman. That is all, Mr. Church. 

STATEMENT OF HON. 0. W. CUTLER, MAYOR OF NIAGARA FALLS. 

Mr. Cutler. On behalf of the city of Niagara Falls and the citizens 
1 want to thank you and Colonel Alexander and Mr. Cassidy for hav- 
ing come here and su1)jected ^^ourselves to the hardships of the trip. 
As you know, we hope that you have enjoyed the day, and as we are 
satisfied you have and as you probably will know from some little cor- 
respondence with me and I presume from others that this bill which 
you have in hand has caused our citizens a great shock and a great deal 
of alarm, as never before this until it was brought to our attention in 



186 PKESERVATIOX OF NIAGARA FALLS. 

this way has the matter of impairment of the scenic beauty of the 
Falls ever been considered b}' onr citizens. It has never been the sub- 
ject of conversation or discussion in any way. 

We, who have been accustomed to see the Falls and the various points 
of interest here from day to day for years l)elieve — and I do not know 
that our citizens all fully realize what the more intelligent and those 
who have g-iven it more thoug-ht do, that if this bill in its present form 
should be enacted it would 1)6 a very great blow to the material inter- 
ests of this city. The cit}' has grown since the development of power 
here over 200 per cent. When the power was turned on we had a 
city of 10,000 inhabitants; now we have 30,000; and that has grown 
altogether, I think, on 'account of this power development — the capi- 
talists and artisans that have been attracted here. Millions of dollars 
have been invested and millions more are being invested, where the 
improvements are nearly completed but not in shape yet to turn on 
the power, and if this drastic measure should be adopted it would not 
only work this injury to these capitalists, who, perhaps, as a great 
man}" people would feel, could stand it, but it would aflect, say, the 
20,000 increase in population here, many of whom have come here 
and have bought their homes, and a majority of them not paid for 
but paying for them; and of course if the measure in its present shape 
should be adopted, why it would, I think, bring disaster to this class 
of people, and not only to them, but to our \ocvA capitalists who have 
invested in business blocks here. Property on the main street, acting- 
through the influence of this development, has advanced from |UO0 a 
foot to $1,000 a foot. 

Now, if this business and these prospects of enlargement and increase 
here should be taken away — while I would not want it to go out to the 
public — in my opinion these properties would shrink 60 per cent; so 
it is not -only the capitalists that would be affected, but the class here 
of our citizens who could ill afford to lose; it would be ruination to 
them. But I did not arise for the purpose of makuig a speech, only 
that thought came to me as I got upon my feet. We expected when 
we came in here to sit down and have a little talk and conference, and 
we will proceed in that way now if ,you prefer to. Still, it has been 
suggested since we came in that a gentleman who is well prepared, 
representing the citizens — two or three — would make a very short 
talk to you, and Mr. Porter, who wants to go to Buffalo this evening, 
would like to talk about five minutes, and then if agreeable we would 
like to introduce Mr. Gary and Mr. Brackenridge. But we want to 
meet your wishes, knowing that perhaps you may be very much 
fatigued, and we do not want to ask you to adopt any other form of 
.procedure here than has l)een suggested, and we will do as you prefer. 

The Chairman. Go right ahead. 1 am not sure now that we can give 
any particular time to-morrow to hearings. We have heard a great 
deal in regard to this, as you know, already. The legal arguments 
have been" presented to us at great length, and the arguments of engi- 
neers, also in regard to the interests of the localit}- here, and yet we 
would be glad to hear more on the subject. 1 think this time, how- 
ever, is the best. 

Mayor Cutlp]R. We want you to feel that this is a citizens' repre- 
sentation here and simply to acquaint you with our feelings and our 
sentiments on the subject, and, as others will of course go over it, I 
need not say anything more. 



PEESERVATIOlSr OF NIAGARA FALLS. 187 

Mr. Alexander. How long have you lived in Niagara Falls? 
Mayor Cutler. Thirty-nine years. 

Mr. Alexander. And how long have you been mayor of this city? 
Mayor Cutler. I was mayor in 1895, and I have been mayor since 
the 1st of January, 1905 — this term. 

STATEMENT OF COL. PETER A. PORTER, OF NIAGARA FALLS. 

Mr. Porter. You have seen all the big power plants. I want to 
call your attention to the injustice this bill would do to the smallest 
power plant on the river. 1 have, at the Cataract House, which is 
situated on the State reservation about 400 j^ards above the Falls, a 
small water power of about 380 horsepower. There is the official 
matter, from the commissioners' report of a recent year. This water 
power was built in 1836, as shown by the order. It ran, taking the 
water in the wing on the upper side. of the reservation, running down 
through an open canal to here. A State reservation was taken. In 
18S3 or 1884 the commissioners passed a resolution asking the 
appraisers appointed by the State to appraise this propert}'^ here, 
which then belonged to the same owners as the Cataract House, with- 
out reference to the water power, stipulating that the Cataract House 
should have the water power which was in that canal as long as the 
canal was open, and, when the commissioners wanted, it should be at 
the expense of the owners" of the Cataract House put underground. 

In 1893, I think, at the direction of the commissioners of the State 
reservation, I pat in at an expense of ^10,000 this conduit. The conduit 
runs from below the foot of Mill Slip, as they call it, to the Cataract 
House, about the center of it. Mill Slip is the continuation of First 
street. This is the open wing; this water-power right is on the State 
reservation, the intake by the consent of the commissioners and the 
appraisers, approved by the court, and the outlet from the hotel to the 
river goes into the river just above Goat Island Bridge. I want to 
submit that this is not such a water power as the Falls is intended to 
be protected from by this bill; it takes the water above the Falls; it 
returns it to them below the Falls, and the intake and outgo by consent 
of the State reservation is on the State reservation. 

Mr. Alexander. For domestic purposes? 

Mr. Porter. For domestic purposes in connection with the property 
at the hotel. 

The Chairman. Where do you use this 380 horsepower? 

Mr. Porter. It is for use in connection with the hotel. 

The Chairman. Do you use as much as that around the hotel ? 

Mr. Porter. I am not using as much as that now — not around the 
hotel. I do not run it; but it is there. 

The Chairman. Are you withdrawing water enough to create 380 
horsepower'^ 

Mr. Porter. In the summer they withdraw some, but I do not 
know that it is as much as that. 

The Chairman. Have you ever utilized the 380 horsepower? 

Mr. Porter. It has been utilized in different parts along the same 
propert}^- — not l\y the same owners — and when the State declined to 
pay for the water power in connection with it they gave the owners of 
the property who owned on both sides the right to utilize and keep 
this water and put it underground in conduits, at their own expense. 



188 PRESERVATION OF NIAGARA FALLS. 

The Chairman. Is not this right to use restricted so that it is only 
for certain purposes^ 

Mr. Porter. I think not. 

The Chairman. Is it absolute? 

Mr. Porter. It is for the hotel property. The hotel property was 
not only on this side, but included a long strip of the river front 
opposite which the State reservation took. 

The Chairman. Is that the original grant? 

Mr. Porter. "As the water then tiowed" was the terms of the 
wording. 

The Chairman. And for use in connection with the hotel? 

Mr. Porter. With the hotel. 

The Chairman. So that you do not use this for outside purposes? 

Mr. Porter. No, sir. 

The Chairman. Only for the hotel ? 

Mr. Porter. Only for the purposes on that property. 

The Chairman. How can you use 380 horsepower in that hotel? 

Mr. Porter. They are not using it to-day. 

The Chairman. Were j^ou ever able to use it? 

Mr. Porter. Yes, sir; 3'ou can take that power for hotel pnrposes 
and run ice machines, lire protection, elevators, and at night turn it 
into the lighting of the hotel for electric-light purposes. 

The Chairman. I should think with that full amount of power there 
would be danger that something would luove too rapidly; that you 
would find you have too much power. ^ 

Mr. Porter. Nothing moves too rapidly for Niagara Falls. » 

The Chairman. Have you a copy of your franchise or grant? 

Mr. Porter. I have one and will furnish it. 

The Chairman. Of course it is not necessary to sa}^, Mr. Porter, 
that you are not the man we are after. 

Mr. Porter. I understand that. The water is taken from the river 
above the Falls and returned to it above the Falls. 

The Chairman. You did not quite state that before. You said 
below the Falls before. 

Mr. Porter. I meant to say above the Falls, below Goat Island. I 
do not think it would hurt the scenery, and I suggest a modification of 
the bill so as to protect that right, whicb is the earliest right granted 
by the vState for power from the river. 

The CHAiR:\rAN. Perhaps you had better give Mr. Cassidy a copy of 
your franchise. 

Mr. Porter. I will do that to-morrow morning. 

STATEMENT OF EUGENE GARY, ATTORNEY AT LAW, OF NIAGARA 

FALLS. 

Mr. Cary. I was asked by a committee of citizens to represent the 
city of Niagara Falls and its interests. I took some pains to prepare 
to speak on that subject, but I should not be guilty of inflicting any 
such speech as I have prepared on members of a committee at this 
time of night. I appear for the people who, of all people on earth, are 
the most vitally interested in this bill. We hold the falls of Niagara 
as our proudest possession and our most valuable asset. The gran- 
deur and beauty, which are a source of joy to the occasional visitor, 
are to us a daily source of pleasure and inspiration. We have no 



PEESERVATION OF NIAGARA FALLS. 189 

desire to have that beauty impaired. We believe it is possible to 
continue the industrial development that has been seen here without 
injury to the falls of Niagara. We know from our own observation 
that there has been no impairment of the beauty by the diversion that 
has alread}' taken place. 

Twenty 3^ears ago last October I became a resident of this city. 
Since that time I have lived within not over three or four blocks of 
the rapids. In the last fourteen years I have lived within two short 
blocks of the rapids, alwa^'s in sight from the windows of my house. 
The roar of the cataract is as loud as when 1 first heard it, the flow 
of water to-day is as great as when I first saw it. No human e3'e, in my 
belief, can detect the slightest impairment of the scenery of Niagara 
caused by taking water from Niagara Falls. Last spring, when at 
Atlantic Cit}^ I met a lady from Washington, who told me that she 
was very fond of visiting Niagara and used to come here, but she 
could never come again because it would hurt her so to see those bare 
rocks where the water used to flow. I suggested to her that she 
might come and mingle her tears with the upper river, as it would 
certainly afl'ect the flow of the falls just as seriously as it had been 
efi'ected by the diversion of water that had taken place. 

There has grown up here in the last few years a city — the mayor 
did not fully state the growth, because the Niagara Falls Hydraulic 
Power and Manufacturing Company began taking water from here in 
the igeventies — and the little village of four or five thousand has grown 
to the city of nearly 30,000. Here processes have been put in operation 
by cheap power, which are not merely completing an industrial devel- 
opment here, but which will contribute to the industrial development 
of the whole nation. Here aluminum, which is used in making Gov- 
ernment armor plate, has been reduced nearly to one-half its former 
price and is being manufactured on an enormous scale and the com- 
pany is planning to largel}' increase that product and has already con- 
tracted for the machinery and apparatus. Bleaching powder, entering 
into so many processes, is being made here cheaper than ever before 
and other processes of the same kind, the use of which and the bene- 
fit of which is not confined to this Niagara frontier, but which enter 
into processes of manufacture all over the United States. I think it 
is within bounds to say that the passage of this bill will strike a blow 
to material interests not less in eflect than the Baltimore fire — a 
destruction of material interests as great as that will take place by 
the passage of this bill. 

Now, as I sa}", there can not be any question in my mind that no 
impairment of the Falls at the present time has taken place. I would 
like to quote the language of one of our oldest residents, published in 
the paper a w^eek ago. He said: "Few can say as I can, that they 
have lived within the sound of the cataract for seventy-five years and 
for more than fift}^ years within gunshot," and then goes on to say 
that he would not misrepresent; the simple truth is sufiicient; go and 
look upon the river — look upon the tiwiiultuous rapids and ask when, 
except when afiected by very high winds, was the flow of water greater 
than to-da}^? There are numerous gentlemen in this city of the very 
highest character and standing who can be produced before you and 
who will testify to the same effect. 

Now, gentlemen, I submit that the development of the industrial 
resources of the nation has always been a matter of Congressional 
p N F— OG 13 



190 PRESERVATION OF NIAGARA FALLS. 

concern; ever}^ tariff bill upon our l)ooks from the foundation of the 
Government testihes to the interest of Congress in the industrial devel- 
opment of the Nation, and we ask that this bill be so amended as to 
permit a further industrial development in so far as it can be done — 
at least in so far as it can be done without material injury to the beauty 
of the Falls. The test of the effect of this diversion of water is the 
human e3'e. Until the eye of the average observer can see that the 
Falls has been injured by diversion no injury has been done to scenic 
beaut3\ Of course these matters have all been carefully considered 
by 3'ou, but I speak here to testify for the people of this city, who 
love the Falls as much as the people of any communit}^ can, that this 
talk of injury up to date has been grossly exaggerated. I would like 
to add one little thing to show the value 

The Chairman. Of course that has certain additional sanction, Mr. 
Gary, as coming from a resident. We have been having hearings for 
nearly two wrecks, in which that statement has been repeatedly made 
to us. We have on ffle some eighty affidavits to that effect. 

Mr. Cart. We have a gentleman who has lived eighty years here 
and he told me that he would testify before you that there had not 
been the slightest possible effect on the scenery by the diversion that 
has taken place. Hundreds of men of the best standing can be pro- 
duced who will testify to that effect. We do not wish to injure the 
Falls. 

There is one other point I would like to make. I wish to say some- 
thing of the value of this newspaper claim that has been raised — this 
clamor that has been raised on this subject. You passed to-day over the 
riverway skirting the park — on one side the park, on the other side the 
buildings fronting the park. That street railroad there is on the State 
reservation. 

A number of j^ears ago I went to Albany as the representative of 
the street-railroad company in favor of a bill to permit that railroad 
to be built. Someone started the ciy that the State park was to be 
desecrated by a private corporation. When 1 reached Albany I found 
the editorials in the New York Tribune, the Sun, the Evening Post, 
and every paper in the State of New York that is now joining in the 
clamor to save Niagara, demanding of the legislature that the}' pre- 
vent the profanation of Niagara by allowing the construction of that 
railroad, and 1 could not get a respectful hearing before the committee. 
Two or three years later, with the consent of the commissioners of the 
State reservation, who had made up their minds it was wise to have 
that railroad there, and quietly, without any clamor, a bill was passed, 
was signed by Governor lloosevelt, and the papers have said nothing 
about the profanation or desecration of Niagara b}^ that railroad. A 
little agitation started by someone easil}' grows into this tremendous 
clamor that has been heard. We people here believe that it is unjusti- 
fied, that it is not based upon fact, and that we here know actually 
more about the real situation than the people do from California to 
Texas who have been sending ui petitions about saving Niagara. 

I thank you. 

The Chairman, What quantity of water do 3'ou think can be with- 
drawn from the Falls without, as you say, materially impairing their 
beauty ? 

Mr. Gary. I am not an engineer. I can only say this, the water 
that is now being drawn on the Canadian side is taken from a point 



PRESERVATION OF NIAGARA FALLS. 191 

below where the water parts between Canada and the United States 
and comes down the slope, consequently the water that is to be taken 
by those three companies can not detract from the fall of water over 
the American Falls. Now, as the water actually withdrawn by the 
two power companies on this side has caused no visible change in the 
American Falls, I think I am quite within bounds in saying that the 
withdrawal from the American side of twice that amount would not be 
visible, and the withdrawal from the Canadian side takes place at a 
point where it cannot afl'ect the flow over the Anierican Falls. 

The Chairman. Well could we entirely leave out of our thought 
the falls on the other side. You are aware as to where the boundary 
is, I suppose, that it goes through near the center of the Canadian 
Falls — that is the boundary between Canada and the United States. 

Mr. Cary. Well, I am not an engineer and engineers can figure this 
much more accurately than a la3'man; that the immensity of the volume 
on the Canadian side — I believe some 90 per cent goes down that side. 

The Chairman. Yes; variously estimated at from 87 to 90 per cent. 

Mr. Cary. If the amount that I have known to be withdrawn on 
this side has not visibh" afl'ected the Falls where some 10 to 20 per cent 
is going over, I do not believe the withdrawal of the amount that 
they expect to withdraw on the Canada side can possible affect the 
volume of water which is seven or nine times as great as on this side. 

The Chairman. What share of the water that is withdrawn on the 
American side do you take it is withdrawn from the American Falls ? 
Do you regard it as all withdrawn from the American Falls? 

Mr. Cary. That is my understanding; it is practically all. It comes 
below the dam in the river where the slope begins, and it is impossible 
when that water comes down that slope for it to be drawn to any great 
extent from one side to the other. 

The Chairman. So you are basing your calculation on the thought 
that whatever is withdrawn for the two power houses on this side is 
taken from that which would otherwise go over the American Falls? 

Mr. Cary. I think almost entirely so; yes, sir. I understand that 
it is withdrawn from below where the downward rush begins; that is, 
mostly. 

The Chairman. We would really like, if you have any facts to give 
in support of that position, to have them. We have had estimates by 
those who claim to be experts that six-sevenths of the amount taken 
on the American side is withdrawn from that which would go over the 
Falls on the Canadian side. 

Mr. Cary. If that is true, I am wrong. I am not an engineer, as I 
said. 

The Chairman. Your calculation has all along been that the case is 
as you have stated ? 

Mr. Cary, Yes, sir. 

The Chairman. In cubic feet, what amount do you think could be 
withdrawn from the Falls without material impairment? 

Mr. Cary. I would have to depend entirely upon engineers for that. 

The Chairman. What amount do you understand is being with- 
drawn now? 

Mr. Cary. I understand that the estimates of the flow over Niagara 
Falls var}^ from 224,000 to 275,000 cubic feet per second. 

The Chairman. No. From 180,000, which is the low water of the 
Falls, to 222,400, that is the ordinary, and then it occasionally goes as 
high as 250,000; some estimate as high as 270,000. 



192 PEESERVATION OF NIAGARA FALLS. 

Mr. Cart. 275,000, I understand, some of them estimate. That, of 
course, would be simplj^ a matter of mathematics, 1 think I am right 
in one thing; it may be that these Falls here take somewhat from 
Canada; of course, then if the plant was doubled they would be taking 
in the same proportion from the Canadian Falls and would not atJ'ect 
us; but 1 think the Canadian plants are not drawing from the Ameri- 
can side of the river and will not atJect the American Falls, and 1 would 
still be right in my conclusion that if the amount which is now with- 
drawn would not affect it, I do not think the doubling of it would. 

The Chairman. ,You would think double the amount now taken 
would not or might not injure it? 

Mr. Cary. I do not think it would. I do not think the Canadian 
development affects the American side at all, and 1 think double th€ 
amount could be taken without injury to the American Falls. 

The Chairman. Have you made any computation of what multiple 
of the amount now taken is in contemplation — the amount which would 
be taken under franchises outstanding? 

Mr. Cary. \^Tiy, I know that the Niagara Falls Hydraulic Power 
and Manufacturing Company are entitled to take, I believe, about 
4,500 cubic feet more than they are now taking, or 5,000, are they not? 

The Chairman. They claim the right to take 9,500 feet — more than 
double what they are now taking. 

Mr. Cary. And the power company's franchise for a second tunnel 
would be 8,600 more. The total amount would be a little more than 
double that now taken. 

The Chairman. Nov;^, on the Canadian side? 

Mr. Cary. I have not taken that into account. 

The Chairman. The amount contemplated to be taken there is more 
than six times the amount they are now taking. 

Mr. Cary. That would still come, though, from a point where it 
would not affect the American Falls. 

The Chairman. Well, I ask you again, Ought you not to take into 
account the Horseshoe Fall, a portion of which is in American 
territory ? 

Mr. Cary. I think that if the Canadians will agree with you to do 
it, but I do not think that we can afford to build up the industries on 
the Canadian side at the expense of the power that they can furnish 
us to use on this side. 

The Chair:man. The most of the capital that is invested on the other 
side is American capital, is it not? 

Mr. Cary. I think the Canadian Niagara Power Company is largely 
American, and the Ontario. I understand the Toronto Power Com- 
pany is mainly Canadian capital. 

The Chairman. Have you ever made any computation of the total 
amount of horsepower used in the Province of Ontario? 

Mr. Cary. I have not. 

The Chairman. How do you think it compares with the amount that 
could be developed bv the Falls on the other side? 

Mr. Cary. 1 have no idea. 

The Chairman. Possibly if you would look that up, you would find 
some interesting facts in regard to it. 

Mr. Cary. 1 simply say what 1 have seen at the Falls and the effect. 
When I go into engineers' calculations I have to depend upon engi- 
neers. 



PRESERVATION OF NIAGARA FALLS. 193 

The Chairman. Suppose we should make regulations which would 
restrict the diversion on this side, how do we know that the amount 
of water which would go over the Falls would not be determined by 
what should be withdrawn on the other side? How do we know but 
that they might go ahead with further diversions? Are there not 
three or four franchises outstanding there that are not in use at all? 

Mr. Gary. I understood from the park commissioners' last report 
that I saw that they said there were three moue places where power 
plants might be developed with them, six in all, and they had granted 
three, and their last report, 1 understood, of the commissioners of the 
park recommended that they should not grant the other three. 

The Chairman. Would you be able to assure the members of this 
committee that there was a hxed limit in the quantity of power that 
would be withdrawn on the Canadian side? 

Mr. Cary. No, sir; I do not think it would be possible for me or 
anyone here to do that. 

The Chairman. If there were some effort made to restrict the use 
on the American side, is it not probable that the American capital 
that would be invested here would go to the other side of the river 
and there divert water from the river to an extent as great as that 
which is prevented from being diverted on this side? 

Mr. Cary. You mean, if you prohibit our div^erting here, is it pos- 
sible that capital would go over there and divert to the same extent 
you forbade it here ? 

The Chairman. Yes. 

Mr. Cary. I think it would. I think that with the use of the power 
upon that side that it would be very possible to develop manufacturing 
plants that would use large amounts of power, which would shut us 
out of the foreign markets. 

The Chairman. And the power would be used on this side? 

Mr. Cary. No; I think it would be possible for them to build it up 
there. I think if you prevent using it here they could use it there 
for concerns which would shut us out of the European mai'ket. 

The Chairman. How ? 

Mr. Cary. In the products they could make more cheaply with that 
power than we could make in this country, if they are driven to it. If 
the power can not come in here I think it will simply encourage their 
manufacturers, because the companies have developed the power and 
it will have to be used. 

The Chairman. Can you or anyone else — engineer or layman, as 
you term it — give any assurance with respect to the point where the 
amount developed will begin to seriouslv impair the beauty of the 
Falls? 

Mr. Cary. I think competent engineers could. 

The Chairman. Has anyone given you that assurance — told you the 
exact amount? 

Mr. Cary. I do not think so. 

The Chairman. Have any two given you the same opinion on the 
subject? We have been examining engineers some little time on this 
subject. 

Mr. Cary. I think the minimum between high and low, their mini- 
mum, would be pretty safe. 

The Chairman. What is their minimum? 



194 PRESERVATION OF NIAGARA FALLS. 

Mr. Gary. I have not looked up the engineers' estimate. I am told 
they tigure 40 per cent the minimum; some 33 per cent. 

The Chairman. Right on that |X)int, a little further. You say 3'ou 
understand that 40 per cent is the estimated 

Mr. Cary. Yes, sir; I so understood. What I have read has been 
in the newspaper reports, although we have an engineer here with 
whom I have talked and who is far more capable of answering these ■ 
questions than 1 am. 

The Chairman. Some say 33 and some 40 per cent? 

Mr. Cary. Some say 33it and some 50, 1 understand. That depends 
entirely on my recollection. 

The Chairman. Do you have any idea — of course you have your 
general ideas about engineering, about these Falls — that is the reason 
you are appearing before us? 

Mr. Cary. Yes, sir. 

The Chairman. Do 3^ou say to us as members of this committee 
that you or any engineer or anyone can tell how much water can be 
withdrawn from Niagara River without impairing the beauty of the 
Falls? 

Mr. Cary. 1 should say that with a given volume of water flowing 
with a given velocity over a dam the depth of that water — average 
depth — is a matter of mathematical computation. My eye might tes- 
tify from looking at it, but it is a matter of mathematics if you know 
the volume and the velocity and the width of the dam; and if you 
know that, and you know how man}^ cubic feet are withdrawn at certain 
points, it is a matter of mathematics just how many inches it would 
reduce that average flow. Now, perhaps, as well as engineers, we 
could tell after looking at the flow of water over that cataract what 
eflect an inch or 2 or 6 or 8 inches more or less would have on its 
beauty. 

The Chairman. Do you know the depth of the Canadian fall? 

Mr. Cary. I do not.^ I do not think I have ever heard it stated. 

The Chairman. Does anyone else know what it is? 

Mr. Cary. If they were to attempt by any process of measuring by 
the eye they never could tell; but if they know the volume — and your 
whole bill is based upon the fact that you do know the volume, because 
you say it is 224,000 cubic feet per second — if they know the volume 
and the velocity and the width of the dam, it is a matter of mathe- 
matics, and it can not be anything else. 

The Chairman. We would like to have you give us a formula on 
which you flgure that. You say it is a matter of mathematics. 

Mr. Cary. I do not figure it. I am not up on engineering. There 
is a rule — Francis's I'ule — for computing the depth of water going over 
a dam where you know the volume, the width of the dam, and the 
velocity of the water. 

The Chairman. Do you think we could apply Francis's formula to 
this situation here? * 

Mr. Cary. If you know the vohnue and you know the velocity. 

The Chairman, What was Francis's rule made to apply to? 

Mr. Cary. I can not tell 3'ou, The engineers here can tell. 

The Chairman. Was it made to apply to Niagara Falls, or anything 
like it? 

Mr. Cary. I think there is a dam, with water coming at a certain 
velocity and a certain volume. 



PRESERVATION OF NIAGARA FALLS. 195 

The Chairman. Is Niagara Falls like an ordinary dam? 

Mr. Gary. No; because its contour is broken. 

The Chairman. If you have an}- formula to apply, we would like 
to hear it. 

Mr. Cary. I take that entirely upon engineers' statements that that 
is practically so. 

The Chairman. How does the general depth of water in the Lakes 
and the river in the 3-ear 1906-1905 compare with the average depth '^ 

Mr. Cary. For the last three 3'ears, 1 think, in 1905 the depth in 
the river was higher than I have known it to be for some time. Not 
higher than I have known it to be at other times within the twenty 
years that I have been here; higher than I have known it at some times; 
in other words, I have known it to be high. I have known it to be 
what they call high. 

The Chairman. How much higher than the normal level has it been 
during these recent years? 

Mr. Cary. I could not tell that hy an}' exactness. 

The Chairman. There are figures in regard to that, are there not? 

Mr. Cary. I presume so. 

•The Chairman. The water gauge, from day to day? 

Mr. Cary. I understand so. 

The Chairman. You say you see no difference in the amount of 
water flowing over the Falls. Might not that greater height of water 
prevalent in the lake, which is the reservoir out of which the river 
flows, and in the river explain that fact, even though there had been 
a considerable depletion by diversion? 

Mr. Cary. I think not, for the reason that since that diversion was 
carried on to a considerable extent and fully half as much as now, 
there were also periods of low and of high water, and there have been 
periods of high water since I have been in Niagara Falls when I think 
the water was practically as high as it has been. 

The Chairman. You took no actual measurements? 

Mr. Cary. No. 

The Chairman. Y'ou say the way to tell whether there is an injury 
to the Falls is by the eye^ 

Mr. Cary, Yes, sir. 

The Chairman. Would it be your thought, Mr. Cary, that we 
should wait until the eye detects a serious injury to the Falls before we 
should think of taking any action ( 

Mr. Cary. 1 do not say that. I should say, however, that where there 
were intercsts so vast to be affected, that within perhaps a little less, 
granting a little less, than engineers ligured would be the efl'ect, 
you would be safe in allowing that to go on, with the certainty that it 
would not affect it to the eye of the average observer. 

The Chairman. Here is the situation presented to the committee: 
Any measure that we have had under consideration is temporary in its 
nature, to last for three years or two years, or until a treaty is framed. 
Would you say that this committee was justified in taking it for 
granted that we were safe in allowing this depletion to go on to three, 
perhaps four, times the present amount — let the matter go — or would it 
be the part of wisdom to say: Let this depletion be checked for a few 
years until we can tell more accurately what its result would be. 
Suppose that position was put before the committee, what do you say 
should be done? 



196 PRESERVATION OF NIAGARA FALLS. 

Mr. Cart. I think, as far as the depletion now contemplated on the 
American side — 1 am not .speaking of any company with an unlimited 
franchise — let me take, first, the two companies that I know of that 
we haye mentioned. 

The Chairman. But there are two companies besides. One has 
17,1>00 and the other over 10,000. 

Mr. Cart. Allow me to take at tirst a basis. I know of two that 
you have spoken of. I feel absolutely certain that the diversion they 
contemplate will not afi'ect the Falls, because I have seen the lack of 
effect of the diversion already made. Now, as to the next one, of 
17,000, 1 understand that that company proposes — and that is a matter 
of engineering that I do not understand — to remove certain reefs and 
restore to the American channel the water that belongs to the Amer- 
ican channel, and that if that is done the flow upon this side will be as 
great as it was without any diversion. If that is so, the beauty of the 
Falls on this side could not be impaired. 

The Chairman. Now, you are a lawyer, Mr. Cary, and you realize 
that a certain comity must exist between nations on opposite sides of 
a river? 

Mr. Cary. Yes. 

The Chairman. Here is a cataract, divided into two parts. It is 
regarded as a great scenic spectacle, a splendid object — what do you 
say as to the right to do what you say without the consent of the nation 
on the other side, in view of the comity that exists between nations? 

Mr. Cary. I believe you claim that they are ruining the falls in 
developing power to the extent they are? 

The Chairman. I would like if you would answer the question 
directly. What do vou say as to the right, in view of the comity that 
exists between nations, to do that? 

Mr. Cary. I meant to make my answer direct. But, in the first 
place, we are entitled, are we not, to a larger portion of that water 
than we are getting? 

The Chairman. There were six commissioners that, some ninety 
years ago or a little less, laid out the line with a view to giving to each 
side its share. 

Mr. Cary. But it so happens that, through the rock formation, we 
do not have our share. 

The Chairman. That, perhaps, may be true. I was not aware of 
that, however. 

Mr. Cary. I am getting that from information. 

The Chairman. Where do you understand the line to be? 

Mr. Cary. I am informed it is practically the center of the Horse- 
shoe Fall. 

The Chairman. I take it that boundary was fixed with a view to an 
equal division of the waters at the time. 

Mr. Cary. Is there any such equal division at present? 

The Chairman. It was intended to be. 

Mr. Cary. From the engineers' reports you have. 

The Chairman. I do not believe anyone can approximate that with 
any certainty. 

Mr. Cary. The engineers and persons representing that company 
(•an answer those questions better than I can. I am not speaking for 
any company. I am speaking for the city here, and, as the mayor 



PRESERVATION OF NIAGARA FALLS. 197 

has said, there is an enormous amount invested in manufacturing^ and 
in other ways. 

The Chairman. Your position is substantially this: You would place 
no check upon the claims of these companies that are seeking to use 
power, not even for two years or three years or one 3^ear? 

Mr. Gary. I would certainly limit the amount of power — the total 
that they could produce. 

The Ohairman. To what? 

Mr. Gary. For instance, as to the two companies in existence, the 
limit which they have b}' their charters. As to the company which 
proposes to make this change in the river, if they can do what they 
say they can do and give us the navigation b}^ canal that thej' sa}^ they 
can give, with no more eti'ect upon the river than the engineers sa\', 
1 should allow them to do it. 

The GiiAiRMAN. That is, with their 17,900 cubic feet per second? 

Mr. Gary. If the}^ can do it with the effect upon the river that they 
state. 

The Ghairman. What do 5^ou understand to be the effect upon the 
river? 

Mr. Gary. The engineering work, they state, will bring over to the 
American side a larger proportion of water and will not result in any 
appreciable effect upon the American Fall. 

The Ghairmax. Of course you must bear this in mind, Mr. Gary, 
the Ganadians claim the right to divert as much as we do on this side 
and 10,000 cubic feet more, because they charge up to us what water 
is diverted through the Ghicago drainage canal. 

Mr. Gary. That is in the event that a treat}^ is finally made. 

The Chairman. They can go ahead and divert it without any treaty, 
but they claim that as their minimum; they claim that as the minimum 
amount which they should withdraw. Have j^ou ever figured how 
man}^ cubic feet would be drawn out in case those privileges were all 
given ? 

Mr. Gary. I can not say I have. I have seen the figures. I would 
say I have rather assumed, under the circumstances, that the arrange- 
ment would be made by which the Canadian government would stop 
with the charters they have already granted. 

The Chairman. Have you made any computation of the total amount 
it is contemplated to draw out? 

Mr. Gary. No, sir. 

The Chairman. Is not this true, that in the consideration which 3'ou 
and many of your friends have given to it there has been a sort of 
general confidence: Oh, this will be all right anyway; we don't need 
to make calculations of how much will be withdrawn; we do not need 
to go deeply into the engineering problems of it? 

Mr. Gary. No. We have taliped with engineers and with men whom 
I regard qualified to pass upon such questions and have taken their 
assurances, as being men who knew more about it than I did. I do 
not carry their figures in my head. 

The Chairman, You do not recall the figures that they said could 
be withdrawn? 

Mr. Gary. No; I do not. 

Mr. Alexander. Did you observe the condition of the Falls to-day 
as to the amount of water going over them? 



19S PRESERVATION OF NIAGARA FALLS. 

Mr. Cart. 1 did not go down to the Falls to-day. 1 was there 
yesterday. 

Mr. Alexander. How did the condition j^esterday compare as to 
other da3's? 

Mr. Cart. 1 saw no change yesterday from any time that I have 
seen the Falls in recent 3^ears, with one exception. A large block of 
rock had broken away near Prospect Point, changing the current 
there somewhat so that the water near the point was much shallower 
than it was before that rock broke off. That has taken place some time 
during the winter. 

Mr. Alexander. Did you notice that a log had lodged on the 
American Fall near Luna Island? 

Mr. Cart. 1 did not; 1 was not over there. 

]Mr. Alexander. Have you noticed at all that there is a log lodged 
there on the American Falls, near Luna Island? 

Mr. Cart. I have often seen them there. Whether it is the same 
log or not, I do not know. 

Mr. Alexander. I noticed one there to-day. I was told it had 
been there some little time. It protruded over the falls 8 or 10 feet. 

Mr. Gary. I have seen the falls dry from the first Sister Island to 
the mainland, and within a few hours I have seen a flow of w^ater; the 
wind afi'ects that ver}'' much. 

Mr. Alexander. The waters flow between the first Sister and Goat 
Island now more than formerly because they have been blasting, 
bringing the water down. 

Mr. Gary. I have seen that change in a very few hours there. 

Mr. Alexander. Do you represent any power company? 

Mr. Gary. No, sir. 

Mr. Alexander. Anyone in the room that does? 

Mr. Gray. I represent in a way a local company. 

Mr. Alexander. Are you a member of the delegation that the 
mayor has brought here? 

Mr. Gray. No. I came to speak about the Woodford power plant, 
down the river. 

Mr. Alexander. Then this delegation that 3"ou are speaking for is 
simply a delegation of citizens of Niagara Falls who have no interest 
in the power companies? 

Mr. Gary. That is right, sir. We are interested in the prosperity 
of our city and we have an interest in the cataract, and if I have made 
mistakes in answering it is because I am not an engineer. 

The Chairman. The difficulty about the engineers is a fatal lack of 
agreement among them. 

Mr. Gary. I would expect them to agree exactly on a jiroblem of 
that kind if they agree in the main. 

The Chairman. What is the general opinion here of the average 
depth on the American side there? 

Mr. Gary. You ask me about the general opinion. I can not give it. 

The Chairman. What is your opinion, then? 

Mr. Gary. As for myself, I have stood there and tried to form an 
idea of what it was out where the water was green and I have never 
been a))le to satisfy myself that I knew anything about it. Sometimes 
as I stand and look at it it looks deeper, and again, if I just glance at 
it it does not look so deep. It depends somewhat as the light strikes 
it, but in guessing at it I could not give any idea that would be of any 



PRESERVATION OF NIAGARA FALLS. 199 

value on that subject, and I do not believe anj^one else could in looking 
at it. 

The Chairman. If j-ou can form no opinion as to the depth of that 
fall on the American side, can you form an accurate opinion of the 
tendency as regards the Falls, whether the waters are higher or lower, 
whether the}^ are affected by this power development or not? 

Mr. Cary. I can say that looks to me just as it did when I first 
saw it. I can see that there is no difference there, and while there is 
a difference probably to the close observer in times when the wind 
keeps the water back it is seen in the rocks that I know in the upper 
rapids, but not seen at the curve of the Falls as I look at them. A 
man who sees it every da}" and watches it closelv b}^ hours might 
notice a difference between high and low water. I dia not think the 
average observer would. 

The Chairman. Of course, if you see a log on that crest that does 
not go over, that is something of an indication how deep the American 
Falls is? 

Mr. Cart. I think not. It would be an indication of a rock. Years 
ago a man named Aver}- dropped into the rapids. He drifted down 
and caught on a rock near the edge of the Falls and for a whole da}^ — - 
and 1 don't know but two days — ever}' possible effort that human inge- 
nuity could devise was made to save that man's life, out on the edge 
of the Falls, because he had caught on a rock. 

The Chairman. Suppose a log were to lodge there and were to pro- 
trude over 10 feet, and the water flowing over were only to come up 
for one-half the height of the diameter of that log — would not that 
show you something as to what the depth was over the Falls? 

Mr. Cary. Not over the Falls. I would say over the particular 
rock that it lodged on. 

The Chairman. Suppose it was; you could see that by the eye, you 
could tell then with substantial exactness? 

Mr. Cary. Yes. I have not seen such a thing, so I could not expi'ess 
myself on that. 

Mr. Alexander. You were going to speak about the Avery Rock. 
Finish your answer as to the Avery Rock. 

Mr. Cary. I do not know where that rock is. I simply know a man 
caught there, and they did not save him. He was swept over the Falls. 

Mr. Alexander. But you have never seen the rock? 

Mr. Cary. No. sir. I have seen a man floating down in a boat catch 
on a rock and they finally got a rope to him and saved him. 

Mayor Cutler. Mr. Brackenridge has been engineer in charge of 
the whole of the Niagara Falls development up to within two }ears 
ago, when the State of New York asked him to relinquish that and 
become a member of the advisory board of the present barge canal ^ 
development. 

The Chairman. Would you like to answer questions, Mr. Bracken- 
ridge ? 

STATEMENT OF MR. BRACKENRIDGE, ENGINEER, REPRESENT- 
ING CITY OF NIAGARA FALLS. 

Mr. Bracke'nridge. Yes, I would be very glad to. 
The following questions were then asked by the chairman and the 
following answers given by Mr. Brackenridge: 

Q. What do you think, Mr. Brackenridge, upon this question as to 



200 PRESERVATION OF NIAGARA FALLS. 

whether any engineer can determine what effect the withdrawal of a 
certain quantity of water will have on the Falls? Can he do it? — A. 
Can it be exacth' determined? 

Q. Yes. — A. No, sir; 1 think it would not be possible to determine 
it exactl^^ 

Q. Can he approximately? — A. As to how much the Falls would be 
lowered by the deflection of a given quantit}^ of water? 

Q. Yes. — A. No, sir; there is no formula known by which it could 
be determined with any exactness. 

Mr. Alexander. He asked, approximately. — A. There is only one 
formula and that is Francis's formula for water flowing over a weir, 
which the contour of the Falls approximates, but it is not really a weir. 

Q. That is, the formula would not apph' to the Falls? — A. Not with 
pecision; no. 

Q. Would it apply even within 50 per cent? — A. I should not like 
to say. 

Q. That is wholly an element of conjecture, is it not? — A. There is 
a large element of doubt in it, as to whether it would or not. 

Q. 1 suppose no one has taken any measurement of the Falls on either 
side, as to their actual depth; that is, j'ou can not tell by measurement 
what the depth is? — A. Not in all parts of it, because they are not 
accessible. 

Q. The American side — what would you say was the range in the 
depth; from what minimum to what maximum? — A. On the American 
side? 

Q. Yes. — A. Well, of course there is a great variation in the depth, 
due to the direction of the wind. 

Q. At a normal stage, unaffected by the wind and about the normal 
flow, what would you say the depth was on the American side? — A. At 
about a normal flow, which is giving it about 224,000 cubic feet a sec- 
ond, the depth varies from three to four inches on the one side to per- 
haps three feet or over. 

Q. How much over 3 feet, would you say? — A. I should think 3|^, 
possibly 4, feet in the deepest point. 

Q. That is on the American side? — A. Yes; that is my judgment. 

Q. What would you say as to the depth on the other side, on the 
Horseshoe Fall? — A. It is very difficult. We have alw^ays assumed, 
taking the proportion of the flow and the amount of water passing over 
the Falls, that it must be about 12 or 14 feet deep in the deepest point. 
We can get a very good idea of the depth near the shore as far as the 
rock is visible, but after that we lose sight of it, and there is no way 
to approach it by which measurements can be made. 

Q. Would you think 12 or 14 feet was the maximum? — A. I should 
think that was about the maximum. 

Q. Some one has made a statement that there is a story in an old 
guidebook of a boat loaded down to 20 feet or more going over the 
Falls. Is that authentic; that is the Horseshoe Fall ? — A. I never heard 
it; no, sir. 

Q. Of course, it might strike on the rocks and break in pieces and 
go over, even if there were only 12 feet? — A. And the force of the 
water might carry it over. 

Q. What would you say w^as the minimum depth in the Canadian or 
Horseshoe Fall? — A. Of course the mininuim, as it gets out to the 
rocks, goes down to almost nothing. 



PRESERVATION OF NIAGARA FALLS. 201 

Q. And the average, you would say, was 6 or T, or what would you 
say was the av-erage on the Canadian side? — A. Well, 1 should think it 
would be 8 or 9 feet. 

Q. The average would be 8 or 9 feet? — A. I should think so; yes, 
sir. 

Q. Where the water is bluest is where it is deepest? — A. Yes, Of 
course this is all largely conjecture, as I said before; I have no exact 
way of determining. 

Q. In view of that uncertainty as to the depth on the Canadian side — 
the contour of the crest — can anyone tell just what effect, or even 
approximately what effect, the withdrawal of a certain amount of water 
will have on the appearance of the Falls ? — A. I do not think that could 
be determined mathematically. But 1 think that we could form a very 
fair estimate of it as a matter of judgment and experience rather than 
a matter of mathematical formula?. 

Q. It would be a matter of estimate? — A. Yes. 

Q. In which there would be, is it too much to say, a large element 
of conjecture? — A. There is an element of conjecture; 3^es, sir. 

Q. Is not there a considerable element of conjecture in it; pretty 
hard to draw the lines, perhaps, between what 3'ou said and "consider- 
able?" I do not know that I ought to ask you that question. Now, 
you have seen the Falls under different conditions; high water and low 
water? — A. Yes, sir. 

Q. East wind and west wind? — A. Yes; I think under all the con 
ditions that have existed since I have been here. 

Q. How^ man}' days in the month are there W'hen the east or west 
wind affects the height of the water going over — the height of the 
Falls, on an average? — A. Well, the prevailing wind here is southwest, 
so that there are more days in the year when the wind is blowing up the 
river than there are days in the vear when it is blowing down the 
river. Just what proportion I could not say. 

Q. You say the prevailing wind is from what direction? — A. The 
direction going up the river. 

Q. Blows up the river? — A. No; across the river, really; but rather 
more up than down. 

Q. So that the Falls is more frequently lowered by the wind than it 
is raised? — A. Yes. I would say that it was. Of course it takes a 
very high wind to affect its appearance. 

Q. On an average, how many da3's in a month is the height of the 
Falls affected bj^ the wind, either way — 3'ou sa}^ it takes a very high 
wind — on an average? — A. I really could not answer your question. 

Q. Is it more than three or four? — A. I should think not more than 
three or four or five da3's in a month. 

Q. Is it as many as that? — A. Probabh^, taking the year around, 
the average per month, from the beginning to the end of the year — 
probably not as much as that. 

Q. More affected in the winter season than the summer season? — 
A. Yes. The winds are usuallv higher in winter. 

Q. What effect does the diverting of water from the Niagara River 
here above the Falls have on the level of the river above those diver- 
sions? What effect does it have on it? — A. It has none. 

Q. Well, suppose you have a certain channel for a river, and you 
take out a canal to the right and the left — both sides — and withdraw a 
third of the water that is going through; 3'ou would not sa3^ it has no 



202 PRESERVATION OF NIAGARA FALLS. 

effect on the level of the river above that diversion? — A. In this 
instance it is inappreciable. You could not measure it. I say none. 
I mean it is a level tliat can not be measured, and in this particular 
instance the river has a g-iven velocitv; there is a o-iven discharge in 
the river; whether that diversion occurs or not, the same quantity of 
water passes down the river to the point of diversion. 

Q. Suppose 3'ou have a cylindrical pipe 2 feet in diameter, and run 
it from a point up at that window to that door, and then 3'ou take it 
two-thirds of the way and bore two auger holes in the bottom of that 
cylindrical pipe; would 3^ou say that would not increase the flow from 
beliind it^ — A. If the opening- in the end of the pipe were open? 

Q. Suppose you bore two augur holes in the bottom of it and the 
water flows out of it? — A. It is a sealed pipe? 

Q. Yes. — A. It would certainly increase the velocity. It would 
not increase the surface slope if the pipe were under pressure. 

Q. Your idea is that it would lower the level of the reservoir. It 
would lower the level of Lake Erie? — A. If you draw more water 
from it. But in this instance you do not draw more water fi-om Lake 
Erie. You draw that water from the Niagara River, which is a nat- 
ural overflow from Lake Erie. 

Q. So that, in your opinion, all that 3'ou draw out at the point of 
diversion by these canals is taken from the flow over the Falls? — A. 
Yes. But it does not afl'ect the level of Lake Erie. 

Q. Nor of the river above? — A. Nor of the river above. 

Q. I am g-lad to have you give a decided opinion on that. — A. I 
have made a study of that. 

Q. Then every bit that is drawn to the right or left, that is diverted, 
whether a mile or 2 or 3 above, diminishes the quantity that goes over 
the Falls? — A. Yes, sir. If it is returned to the river below the Falls 
it certainly diminishes the amount going over the Falls. 

Q. Suppose it goes out and never comes back? — A. I use that in 
distinction to a power as in the case of Mr. Porter's, where it is taken 
at one place and returned again above the Falls. 

Q. So the diversion is not followed by lowering the level of Lake 
Erie and continuing the same flow over the same Falls, but it is taken 
out of the flow over the Falls? — A. It is diverted from the flow over 
the Falls, but it has absolutely no effect upon the level of the river 
above or upon the surface of Lake Erie. 

Q. What do you say, Mr, Bracken ridge, about the diversion of 
water below the Falls, along by the rapids ? I take it that would have 
less effect on the rapids than would the diversion of water above the 
Falls have upon the Falls. That is true, is it not; that is, the rapids 
would be less affected 1)3^ diversion; their appearance? — A. Yes; I 
think that is so. 

Q. What would you sav was the average depth of the American 
Falls? — A. Taking it from the extreme side to side? 

Q. Yes. — A. Of course, it is quite shallow near the shore. 

Q. There are some parts you would almost leave out. — A. I should 
sa3' the average depth was somewhere about 2 feet, at the normal flow 
of the river. 

Q. What do 3^ou say about the share of the water that flows over 
the American Falls, what we call on this side, and that flowing over the 
Horshoe Falls? What is the comparative volume? — A. We have made 
a number of experiments to determine that ver3' question, and as near 



PEESERVATION OF NIAGARA FALLS. 208 

as we can fig-ure it we think there is about eight times as much going 
over the Canadian as the American. 

Q. That is, you would make it eight to one? — A. Eight to one. 

Q. Now, as regards these diversions there at Port Da}^ these two 
companies that have their intakes there, what share of the water that 
they draw off is withdrawn from the American Falls and what from 
the falls on the other side? — A. I can not answer that question with 
any degree of accuracy, but we think about 25 per cent. 

Q. From the American side and 75 per cent on the other? — A. Yes, 
sir. 

Q. So if there should be withdrawn on the American side the full 
amount here, 26,700, approximately 27,000, cubic feet, it would take 
on the basis of 25 per cent a fourth — between a fourth and a third — of 
the amount going over the American Falls, would it not; take some- 
what in excess of a fourth? — A. Yes; about 25 per cent. 

Q. According to the way you figure it? — A. Yes. 

Q. How much would that lower the Falls on the American side?— A. 
We have not been able to tind that it lowers them at all. We have tried 
various means to measure it, but we have never been able to get a 
result, because the flow of the Falls is so influenced by other conditions 
that it has been absolutely impossible for us to get any accurate gauge 
of what the effect was upon the Falls. 

Q. You would not say, however, w^ould you, that that permanent 
withdrawal of a fourth of the quantity on one side would be inappre- 
cial>le because of other causes? — A. 1 would say that I think that it 
can not be detected by the eye, and when we make measurements to 
try to determine what it is, conditions change, change of wind or 
other conditions, which makes it quite impossible to measure it. 

Q. Can not 3'ou eliminate the other causes such as wind, and so on, so 
as to tell just what effect it would have? — A. We have never been 
able to do so. 

Q. In other words, you allow the level of the Falls to be influenced 
bj^ the east w^ind or the west wdncl or b}- other complicating causes? — 
A. Yes, sir. 

Q. So that the amount of water flowing through the river is but a 
subordinate factor. You can even withdraw a fourth or a third of it 
and it will not be noticed? — A. That ma}^ be; yes, sir. If we get a 
strong wind from the south it increases the amount of water going- 
over the American Fall, and decreases the amount goi-ng over the 
Canadian Fall. 

Q. Now, you stated that there is a fall here of which the depth is 
from 3 or 4 inches to 3 feet 6 inches; that fall is about 1,050 feet long? — 
A. About that. 

Q. Now, would you say that a fourth of the water flowing over that 
fall could be taken away, as it would be taken away by these two com- 
panies alone, and you could not notice the effect of it? — A. We have 
not been able to notice the effect of it. 

Q. As it is now, it is not anything; like the quantity that would be 
withdrawn if they have the full rights that I have named here — about 
27,000 cubic feet. Would 3^ou sa}^ that a fourth of that quantity — 
here is a fall 1,050 feet long, averaging 2 feet deep, from 3 or 4 inches 
to 3 feet and 6 inches, possibly 4 feet at the greatest depth — would 
you say that you could take away a fourth of that flow, scattered over 
1,050 feet, and it would not be noticed? — A. I think it would not be 



204 PEESERVATION OF NIAGARA FALLS. 

noticed; no, sir. You see, in order to withdi-aw that quantity of 
water there mu.st be some depression at the point of. intake else the 
water would not flow. It must have a slope and the minute that that 
occurs water is drawn from another point in the river, perhaps out 
toward the Canadian side, so that as more water is drawn more water 
is attracted from a oreater distance and the volume increased in that 
wa}', so that it is not in direct proportion to the amount of water 
diverted. 

Q. Where does that surplus of water come from? — A. It comes 
over the area of nearly the whole river. 

Q. But you have stated that these diversions do not have any eflFect 
on Lake Erie or the river above? — A. The width of the Niagara River 
itself across toward the opposite shore; water must come to it as soon 
as the level of the water in the canal is lowered; more water must come 
from another place to occupy the space the depression of the surface 
has caused. 

Q. I do not think you quite understand me about this. Here is a 
certain amount of water withdrawn, and you sa}" one-fourth of that 
is taken away from the flow over the American Falls and three-fourths 
from the flow over the Falls on the other side? — A. Yes. 

Q. That is, it is lowered on both sides? — A. Yes, sir. 

Q. Now, how can you take out that fourth without lowering the 
level flowing over the American Falls? — A. Well, when I made that 
statement it was predicated upon what we are taking now. We can 
assume a quantity up to 100,000 cubic feet a second, if you please, and 
when you do that it must afl'ect. There is a zone about that intake 
of the canal that is affected by that depression in the canal, and then 
that may change the conditions again. It may not be 25 per cent 
going over the American Falls there. There may be still a greater. It 
is not constant. 

By Mr. Alexander: 

Q. You answered to Judge Burton's question, "If 5^ou divert water 
on either side it will not vary the level of the river or lake?" You 
said it would not? — A. Yes, sir; 1 did. 

Q. You said you could answer that very positively, that it would 
not? — A. Yes, sir. 

Q. How can you answer that very positively, Mr. Brackenridge ? 
Have you experimented ? — A. The Niagara River is the natural outlet 
of Lake Erie, and a certain amount of water, we will say 222,000 cubic 
feet per second, is flowing out of the Niagara River; we take from 
that river a certain proportion of the 222,000 cubic feet. Now, we do 
not make the river discharge any more water than that quantit}^, con- 
sequently it can have no influence on the surface of Lake Erie. The 
diversion of water at Niagara Falls does not increase the number of 
cubic feet per second flowing in the Niagara River. 

Q. Supposing there are 222,000 cubic feet per second going over the 
Falls and you take 100,000 cubip feet per second and put it through a 
canal, would not that necessarily bring more water from Lake Erie; 
otherwise would not the flow over the Falls be decreased by that 100,000 
cubic feet? — A. Yes, sir; exactly. The flow over the Fall would be 
decreased 100,000 cubic feet, but the flow from Lake Erie would not 
be increased. The water would simply be diverted from the Falls and 
put through another channel. We would not be drawing 100,000 
cubic feet more than is naturally flowing in the river, and you can not 



PKESERVATION OF NIAGARA FALLS. 205 

make any more water flow throug-h the river unless you tip the river 
up to make it steeper, and consequently give it a higher velocit}". 

Q. That is, unless vou should cut away at the entrance from Lake 
Erie into the Niagara River, deepen the bed? — A. Yes, or deepen it at 
this end to give it a freer discharge. You have got to give the water 
velocity in order to increase the quantity, and 3"ou can not increase 
the velocity of the water unless you increase its slope. 

Mr. James S. Simmons. Mr. Brackenridge was asked to come on 
behalf of the board of trade. There are three companies that are 
seeking to divert water on this side of the river, and we secured Mr. 
Brackenridge, believing that he could give you the most capable testi- 
mony as to the amount of water that could be diverted without impair- 
ment to the Falls, so instead of our board of trade appearing here we 
thought we would get Mr. Brackenridge, who could answer that accu- 
rately for 3^ou; and the three companies all want to make a diversion, 
and we want to gratify them all as far as possible, or would like to see 
you gratify them, and we thought Mr. Brackenridge would be compe- 
tent to say to what extent they could divert water without impairment 
to the Falls. The board of trade would like to have that done. 

The Chairman. Of course we have looked at the river as an 
entirety, and have thought of the diversions from both sides. What 
do you say, Mr. Brackenridge, would be the quantity of water which 
could be withdrawn from the Niagara River on the American side by 
the three companies'^ 1 suppose you have in mind the Niagara Falls 
Power Company, the Niagara Falls Hydraulc, and this other, w^ell, it 
is the General Electric Company? 

Mr. Simmons. Niagara County Irrigation and Supply . 

The Chairman. What would you say about that, Mv. Brackenridge? 

Mr. BRACKENRiD(iE. I did not understand your question. 

The Chairman. What quantity do you think could be w^ithdrawn 
by the three companies, the Niagara Falls Power Company, the 
Niagara Falls Hydraulic Power and Manufacturing Company, and the 
Niagara County Irrigation & Supply Company, which is now con- 
trolled by the General Electric Company, without material impair- 
ment of the scenic grandeur of the Falls? 

Mr. Simmons. I thought you would ask him how much each com- 
pany could divert with safety to the Falls? 

The Chairman. That term "safety." What do you mean by that? 

Mr. Simmons. In his opinion, as to what extent a diversion, or how 
many cubic feet per second each company could be permitted to divert 
without impairing the Falls. 

The Chairman. Let it be in that form. You now understand it, do 
3^ou ? 

Mr. Simmons. The idea was to see how near the demands they have 
asked for could be complied with without serious injuiy to the scenic 
beaut3\ 

The Chairman. A moment ago your question was "without mate- 
rial injury," and then another, time it has been proposed "without 
injury." Now, all those three have quite a different shade of meaning. 
Which would 3"ou prefer it to be? 

Mr. Simmons. Without material injury. How much could be with- 
drawn by those three companies without material injury to the Falls. 
The point I want to get at — each of these three companies have asked 
for a certain quantity of water before 3'our committee, and I would 
p N F — 06 14 



206 PKESERVATION OF NIAGARA FALLS. 

like Mr. Brackenridge, as an expert, to answer to what extent their 
wants could be supplied without material injury to the Falls. 

The Chairman. 1 thought first of asking in the aggregate and then 
each separately. What would 370U saj^ the amount was, in the aggre- 
gate, they could withdraw without material injury to the Falls? 

Mr. Brackenridge. The two companies now in operation, together 
with the Irrigation Compan}^? 

The Chairman. That is it. 

Mr. Brackenridge. I have to qualify my answer to that question, for 
the reason that the irrigation compai^v's plan, as I understand it, as it 
has been presented to me, contemplates restoring to the American 
Falls the full amount of water which would be diverted, and if their 
plan is carried out and we consider that in my reply to your question 
then my answer will be that there will be no injurious eliect to the 
scenic beauty of the Falls on the American side. 

The Chairman. By how much withdrawal? 

Mr Brackenridge. By 40,000 feet a second, which they can easily 
restore if they carry out their plan as contemplated. 

The Chairman. That is the aggregate of the three — you mean the 
sum total of the three— 40,000? 

Mr. Brackenridge. No; the amount withdrawn, 40,000. But 1 
suppose that is about the quantity those three companies will use; but 
they will restore to the American Falls, according to their plan, the 
amount that is diverted, no matter what that quantity niay be, within 
reason, forty or fifty thousand cubic feet a second. 

The Chairman. That is, you refer to that shaving ofl' a place about 
500 by 700 feet in area? 

Mr. Brackenridge. Yes; j'ou asked Mr. Cary if we had any right 
to divert water from the river which might be drawn from the Cana- 
dian side. Now, as a matter of fact, there is a great deal of water now 
flowing from the American side to the Canadian side of Goat Island, 
and you may have noticed that at the head of Goat Island there is 
alnjost as much water going toward the Canadian side as going down 
the American rapids, and this irrigation company proposes to remove 
that reef and check that diversion to the Canadian side; possibly bring 
water from the Canadian side; but if they merely check the flow of 
water from the American side to the Canadian side it will very mate- 
rially increase the flow over the American Falls. 

The Chairman. We have gone into that question quite extendedly. 

Mr. Brackenridge. I can not ansAver your question if 3^ou bring 
them into consideration, and I have to consider their plan as a whole; 
then I must say to you that I can not see that the flow of the water 
over the American Falls would be impaired at all. 

The Chairman. This is somewhat of a legal question. Suppose 
there are two proprietors that own lands on two sides of a stream. 
They come together and fix the boundary out in the stream between 
the two sides. There are obstacles on both sides scattered all through. 
Is it not a principle that a person is gntitled to the unobstructed flow 
as it flows by nature opposite his premises? Could one proprietor go 
in and take out a reef which would, we will say, double or add 50 per 
cent to what would flow to his side? I do not ask that as giving any 
opinion of my own, but what is vour opinion about that? 

Mr. Brackenridge. I have a decided opinion on that point. No 
water can legally be diverted from a stream to the injury of parties 



PRESERVATION OF NIAGARA FALLS. 207 

u.siiig- the water below, but if they so improve the stream that they 
o-ive the owners below an equivalent, I think that that does not hold 
good. 

The Chairman. In this case would it be giving the proprietors below 
an equivalent? Would not it be taking it absolutely from the other 
side ? That would be the object, to take it from the other side, would 
it not? 

Mr. Brackenridcje, That is a close question; whether we are taking 
it from the other side or preventing it g'oing from this side. We do 
not divert it, but we restore it. 

The Chairman. It has been flowing, however, in the shape in which 
it is now flowing- from time immemorial, so far as you know? 

Mr. Brackenridge. It is time we stopped it, if it has. 

The Chairman. What eflect would this diversion here at Goat 
Island or above Port Daj^ have on the velocity of the current below 
the point of diversion? Suppose you were to divert sa}^ 27,000 cubic 
feet at Port Day, what effect would that have on the velocity of the 
current between Port Day, the point of diversion, and the Falls — say 
first the Falls on the American side? 

Mr. Brackenridge. It would have no material effect on the velocity. 

The Chairman. That would be determined by the descent? 

Mr. Brackenridge. I mean b}^ the slope and the bed of the river. 

The Chairman. And whatever quantity goes by, whether dimin- 
ished or not, would go with the same velocity? 

Mr. Brackenridge. Well, I won't say the same, but with practi- 
cally the same. Theoretically, not exactly the same, because the fric- 
tional resistance is more in proportion to the volume, but for all 
practical purposes it would be exactly the same velocity, because the 
bed of the river is not changed in its slope. 

The Chairman. So the diversion would not be an appreciable factor 
in determining the velocit}^ below? 

Mr. Brackenridge. No, sir. 

The Chairman. Were there some questions? 

Mr. Simmons. I think not. 

Mr. Alexander. He has not answered all the questions he wanted. 
You have got the aggregate. 

By the Chairman (to Mr. Brackenridge): 

Q. Now, what could each of them withdraw ? — ^A. I do not see that 
it makes any ditt'erence what each individual one withdraws if we have 
the total of the three, does it? 

Q. It would make no difference.— A. It would make no difference 
which one diverts it. If they combined to take an amount of forty or 
fiftv thousand cubic feet, it makes no difference so far as the effect on 
the Falls is concerned, whether it is taken by one party or three. 

Q. Do the different places at which they propose to divert, includ- 
ing the General Electric Compan}^ up at Cayuga Island, make an}'^ 
ditt'erence? — A. So long as it is above the Falls it makes no difference. 

Q. You have said the proportion going on the American side of 
Goat Island is approximately one to eight that going on the other 
side? — A. Yes, sir. 

Q. Suppose this rock should be cleared out, this reef shaved off, 
what would then be the proportion going on the American side and 
what on the other side? — A. It would depend entirely upon the extent 
of the removal of this rock. 



208 PRESERVATION OF NIAGARA FALLS. 

Q. Suppose 3"ou took off 500 hy 700 feet? — A. That is a hard 
proposition. 

Q. That is about the size of it, is it not? — A. It depends entirely 
upon the extent to which the rock is removed. 

Q. That is, the depth ?— A. Yes. 

Q. Suppose it were taken down to the depth of the river behind 
and ahead of it; put in shape just as if the rock never was there? — A. 
I can not use any terras of cubic feet per second, but it would increase 
the volume of flow over the Falls many times what it is at present. 
There is no question about that, and you could cany it to an extreme 
where it woukl take half the flow of the whole river. 

Q. You could not take it inside of Goat Island? — A. If you made 
an excavation deep enough. 

Q. It vvouldhardly be possible to do that, would it, in that current? — 
A. It would not take so tremendous a channel to discharge 222,000 
cubic feet a second. 

Q. I think that is hardly possible. You say it is not probable. You 
say it is possible to so deepen it that 3^ou could carry half the flow 
between the American side and Goat Island? — A. I sa}' that would be 
possible. It would not be reasonable or practical to do that. 

Q. To take off' this reef up there at Grass Island, how much would 
that increase the proportion going on the American side — that is, inside 
of Goat Island? — A. Above or below Grass Island, or both? 

Q. Right at Grass Island, is not there a reef there about .500 by 700 
feet — that is the way it has been stated to us at Washington? — A. It 
would materially increase the flow on that side. I am not prepared to 
say how much. 

Q. Would it double it?— A. Probably double it. 

Q. That would be the best estimate, about double it? — A. Yes. I 
have understood, as the case was presented to me, that they proposed 
to go further than that and come down below Grass Island and make 
further excavations there. 

The Chairman. Of course we have taken into account both sides 
here in our consideration of this subject, not merely the American 
Falls, but the other side, but this is interesting, however, and impor- 
tant too, what you have been giving. I believe that is all. 

Mr. Braokenridge. May I make a statement? I think, from the 
questions that j^ou have put to me, 3'ou have the impression that I 
have an interest or am connected with these power companies here. 

The Chairman. No; not a bit. 

Mr. Brackenridge. I assure j^ou I have absolutely no interest in 
any of these power companies; no connection whatever with them, finan- 
cial or otherwise. I came here at the request of the Board of Trade 
of Niagara Falls, as a citizen, to g-ive you lU}' best judgment on these 
questions, and this plan of the irrigation company, which j-ou have 
referred to as the General Electric Company, has onl}^ been brought 
to my attention within the last two days, and it has occurred to me that 
in that lies the only solution of this question of preserving both the 
flow over the American Falls and the utilization of the power at Niag- 
ara Falls, which we all want, and, as I sa}^, I am entirelv disinterested 
and am speaking only for what 1 believe to be the good of the public 
here and in fact of the whole comnuinity. 

The Chairman. Of course you will realize, and others that have 



^ 



PEESERVATION OF NIAGARA FALLS. 209 

been questioned, that the questions we have asked are direct. We 
want to g'et at the facts. 

Mr. Brackenridge. I thought you had the impression that I was 
on the power side of it, which I wish to disabuse j^our mind of. 

The Chairman. Not a bit. 

The Chairman then questioned Mr. Brackenridge further, as follows: 

Q. Suppose 3^ou were to take out the 27,000 feet claimed bj^ the two 
companies there at Port Day, could 3'ou do that without seriously low- 
ering the level of the American Falls unless you deepen this channel in 
the method proposed there? — A. Twenty-seven thousand feet? 

Q. Yes. — A. That 27,000 feet is made up from adding the power 
company and the hydraulic company? 

Q. Yes; the Schoellkopf Company and the Niagara Falls Power 
Company. — A. 1 think so. I think that there would be no necessity 
for deepening it because it is below the reef which they propose to 
remove. 

Q. That is, you think that quantity can be taken without materially 
injuring the American Falls? — A. 1 think so; yes, sir. 

Q. Well, materially, I suppose you mean to an extent that would 
be noticeable?— A. Yes. A little more than that. Not merely so that 
an expert engineer could see it, but so that the general public would 
notice that that fall was less than it was. I do not think they would; 
no, sir, not with the diversion of 27,000 cubic feet. 

B}^ Mr. Alexander: 
Q. And of that 27,000 cubic feet, how much of it would come from 
the American side that goes over the American Fall? — A. How much 
of it would come from the American side? 

By the Chairman: 
Q. And how much would be diverted from that which otherwise 
would go over the Horseshoe Fall? — A. I am afraid I could not 
answer that question. I could not tell what the proportion would be. 

By Mr. Alexander: 

Q. You have answered it practically in your examination. Didn't 
you say about 25 per cent? — A. Well, I qualified that answer by say- 
ing that was a rough guess. I would not want to commit myself to 
any exact amount. Probably 25 per cent would be as near a guess as 
anyone could make. 

The Chairman. I will say to you that the majorit}^ of the estimates 
have not made it as much as 25 per cent. 

Mr. Alexander. They have been smaller; considerably. 

The Chairman. The estimate that has been most commonly given 
is 16f per cent. 

Mr. Brackenridge. Yes, sir; that is quite possible. I think that 
is just a matter of judgment. It is not a matter that is capable of 
exact determination. It is impossible to do it. 

Mr. Alexander. What would be your best judgment on that; of 
the 27,000 feet desired by the two companies on the American side, 
what proportion of that would be taken from the American side going 
over the American Fall? 

Mr. Brackenridge. Well, I do not think it would be more than 
25 per cent. 

The Chairman. You place that as your maximum? 



210 PRESERVATION OF NIAGARA FALLS. 

Mr. Brackenridge. Yes, sir. 

Mr. Alexander. And that, j^ou say, would not be visible to the 
e3^e of the ordinary observer — its influence upon the crest of the Falls? 

Mr. Brackenridge. I think not; no, sir. It is a very complex 
problem, because the minute that j^ou beg-in to lower the water on the 
American side just that minute you begin to draw water from some 
other point. As soon as you lower a surface in water at one point 
water comes from another to restore the level. 

The Chairman. On the principle that water seeks its level? 

Mr. Brackenridge. Exactly. So that it varies with the different 
conditions on the river, and I do not see how that question can be 
answered accurately. 

Mr, Alexander. How deep do you say it is 2 feet out from Pros- 
pect Point, right on the crest of the Falls? 

Mr. Brackenridge. As we looked at it to-day, I should think about 
10 or 12 inches — 10 inches probably. 

Mr. Alexander. And out 7 feet, as we looked at it to-day? 

Mr. Brackenridge. About the same. 

Mr. Alexander. Where does the green water begin — how far out? 

Mr. Brackenridge. Thirty or 40 feet from the shore, probably. 

Mr. Alexander. Flow deep is it there? 

Mr. Brackenridge. I have been trying to hedge that question. I 
think that it gets at that point about 2 feet deep, and I think there are 
points from there on to the middle of the Falls where it is 3 feet deep, 
and probably in some places over 3 feet. Now, the ledge where that 
log was suspended which 3'ou referred to I saw to-day; it was at a very 
shallow point on the brink of the Falls. If the log had come down in 
the middle of the channel at the deeper point it would have gone right 
over the Falls, but it happened to land where the water was very 
shallow. 

Mr. Alexander, You know where the Avery Rock is? 

Mr. Brackenridge. No, I do not. 1 kftow where the log was that 
you referred to, but I do not know where the Avery llock is, 

Mr. Alexander. Called the Avery Rock because that man by the 
name of Avery got caught there. 

Mr. Brackenridge. I do not know it. 

The Chairman. Suppose half the flow over the American Falls should 
be withdrawn, what proportion of the depth flowing over the Falls 
would be taken away; how much would it lower the average depth 
going over the Falls, To aid you a little in answering that question, 
suppose the average depth were 2 feet; I believe that is what you 
stated? 

Mr. Brackenridge. Yes. 

The Chairman. Suppose you were to take away half the water flow- 
ing over the American Falls, what portion of that depth of 2 feet would 
be taken away? 

Mr. Brackenridge. 1 do not know, sir. I could not answer 3'our 
question, because I have no way that I know of by which it can be 
determined. 

The Chairman. Is it not true of this subject of questions arising in 
regard to the Falls that there is an element of conjecture that is unusual 
in engineering problems? 

Mr. Brackenridge. Yes, sir. 

The Chairman, You can only tell by trial what effect it will have? 



PRESERVATION" OF NIAGARA FALLS. 211 

Mr. Brackenridge. Yes, sir; largely. 

The Chairman. 1 believe that is all. 

Mr. Alexander. Then I understand that the two companies in 
existence could take the 27,000 feet desired and not materially injure 
the fall? That is your answer? 

Mr. Brackenridge. That is my opinion ; that they would not mate- 
rial!}^ injure the Falls; yes, sir. 

Mr. Alexander. And that the irrigation company could take this 
17,000 feet by iurning it back into the American Falls; it would not 
injure the Falls materially? 

Mr. Brackenridge. I believe they could not only return to the 
American Falls their 17,900 feet, but they could return to the fall all 
water that is diverted by the other two companies at very little 
expense, so that the fall would be entirely restored to its condition 
before any diversion whatever took place. Now, if we go further, the 
natural question is. What effect will that have upon the Canadian Falls? 
and the answer is that the depth of the Canadian Falls is about 14 feet 
to 2 or 3 feet on the American side; that they can well afford to lose a 
few inches from the 11 feet, which will never be noticed on the Cana- 
dian side, so that it can be quite properly taken from the Canadian 
side and restored to the American side. 

Mr. Alexander. Then, in 3"our opinion, allowing the irrigation com- 
pany to have this 17,900 feet on condition it makes the changes accord- 
ing to this plan would be beneficial to the American side and ought to 
be allowed? 

Mr. Brackenridge. If they will make the changes to restore that 
quantity of water, which in my opinion is entirely practicable, it is an 
advantage to allow them to proceed with their work, even to the extent 
of 17,900 cubic feet a second, because w^e thus accomplish what we all 
want, which is the preservation of the Falls, which is almost as neces- 
sary to the city of Niagara Falls as the development of power. There 
are some 800,000 people come to Niagara Falls every year to see the 
Falls, and I think it is no exaggeration to say that 75 per cent of the 
population of this cit}^ are dependent directly or indirectly upon this 
seven or eight hundred thousand people who come here for that pur- 
pose, and there is, therefore, nobody in the United States who is more 
deeply interested in the preservation of the Falls than the people who 
live right here in this cit}^, and I am speaking for the people, and the 
opinion that I have given you is my very best judgment, without bias 
from any side or any source. 

I firmly believe tliat if these people are permitted to do the work on 
the plan which they have outlined that all that 1 have predicted will 
result. It can not be otherwise. There is a natural barrier which is 
covered with ice in the winter, which forms a dam which practically 
shuts the water off from the American Fall. We walked from the 
mainland over to Goat Island over the American Fall by the water 
being deflected by ice forming on these shallow points above the fall. 
All that water goes over to the Canadian side, and if we remove that 
obstruction the water will come back to the American side where it 
belongs. It is not a very profound engineering problem. Anyone 
can go out there and see the conditions and be convinced that that can 
very easily be accomplished. 

Mr. Alexander. At what expense to the compan}^ undertaking it? 

Mr. Brackenridge. I would not want to answer that question. 



212 PRESERVATIOlSr OF NIAGARA FALLS. 

because I do not know how inan}^ cubic yards of rock will have to be 
removed, but that rock can be removed for about $1 a yard or $1.50 a 
yard where it is in deep water, and there are not very many yards to 
be removed. We are letting work on the barge canal for 463: cents a 
yard where there is very little water. 

Mr. Alexander. How long have you been a resident of Niagara 
Falls? 

Mr. Brackenridge. I came here in 1891 and have been here until 
a year ago. 

Mr. Alexander. And 3^ou have been a student of the Falls here, 
being connected with the power company? 

Mr. Brackenridge. Yes, sir; a very close student of the whole 
siutuatio;i — the effect on the power company and the effect on the Falls 
and the general trend of the river — and we conducted experiments over 
a period of five or six years to determine the direction of the currents, 
and we even considered the removal of these obstructions that are 
now under discussion as a means of getting rid of the ice in the win- 
ter, so that it would not form on these reefs and interfere with the 
flow to the power houses now in existence. 

Mr. Alexander. And you are very sure that the carrying out of 
the irrigation company's plans, as you understand them, would not and 
could not interfere with the level of the river or of the lake? 

Mr. Brackenridge. I know it. It is not possible to. It could not 
possibl}'^ have any effect on the level of Lake Erie or on the river 
between their intake and Lake Erie. As I explained before, you can not 
make more water come through the river than is naturally flowing there. 
The only effect is that it diverts that water from the Falls, and as they 
propose — as I understand their plan, they propose to restore all of that 
water that they^ take, an equivalent to what they take out, and at very 
trifling expense they can go further and restore water equivalent to 
what is being taken by the other companies, even if they take their 
full limit. There is no question about it at all. 

jNIr. Burton. I suppose j^ou have not considered the attitude of the 
Canadian Commission. The}^ claim the right to divert 10,000 cubic 
feet more than is diverted on this side as their minimum demand. 
Now, if these three companies should divert the quantity named, it 
would mean 44,000 cubic feet — slightl}^ in excess of that — on this side, 
and 54.000 on the other. That would be 98,000 cubic feet, which is 
something over about 44 per cent of the total quantity in the river. 
Now, would you say that 44 per cent could be diverted without mate- 
rial impairment of the beaut}- of the Falls? 

Mr. Brackenridge. Fortj^-four per cent of the whole flow of the 
river? 

The Chairman. Yes. 

Mr. Brackenridge. I have always considered that about 40 per 
cent was about the amount that could be diverted without really seri- 
ously injuring the appearance of the Falls. 

The Chairman. On what do you base that? 

Mr. Brackenridge. Well, if 1 have to give a reason for it, we come 
right back to a mathematical reason, which 1 am not prepared to give. 
It is purely a matter of judgment that I have viewed the Falls from 
time to time and under different conditions of flow during a period of 
fifteen years, and with half the amount of the water going over the 
Falls — I mean half below the high- water flow — the rock is not left 



PRESERVATION OF NIAGARA FALLS. 213 

bare; it is all covered, and the effect from a distance — it is just as 
effective from a distance as though there were twice the volume going 
over. Just how much that may be lowered without having an injurious 
effect on the appearance of the Falls 1 am not prepared to say. That 
maybe a matter of judgment and different view points. 

The Chairman. That is, you think the ordinary visitor or tourist 
sees the Falls at something of a distance; he does not come near to them 
and make a critical study? 

Mr. Brackenridge. No; he does not analyze them closely and meas- 
ure the water going over. 

Mr. Alexander. Would it make any difference in the volume of 
the sound? 

Mr. Brackenridge. No, I do not think so; not an}^ material 
difference. 

The Chairman. Now, there is another compan}^ Mr. Brackenridge, 
the Niagara, Lockport and Ontario; they claim the right to divert 
10.000 cubic feet per second on this side. Where is their proposed 
intake? 

Mr. Brackenridge. That is away up the river — Tonawanda, I 
believe. 

The Chairman. What would you say to that, in addition to the 
40,000 feet, making 54,000, and 64,000 on the other side, according to 
their claim, making 118,000 cubic feet, which is considerabl}^ over 
half? We are reaching over 50 per cent now. 

Mr. Brackenridge. Well, if they are going to take 10,000 cubic 
feet of water and the}' are entitled to it, 3'ou had better take it away 
from somebody else and give it to them. You have got 40 per cent 
out now. 

The Chairman. That is, there is such a thing as having enough? 

Mr. Brackenridge. Yes; I think we have gone about the limit. 

Mr. Alexander. Mr. Brackenridge, during the time you have been 
engineer here and a resident of Niagara Falls, you have considered 
this question as to the amount of water that would injure materially 
the Falls; you have had that in mind? 

Mr. Brackenridge. Yes, sir. 

Mr. Alexander. Been a problem constantly before you? 

Mr. Brackenridge. Yes, sir; it has been a question which has 
alwa3's been considered by me. It has been a question which has 
always been before the public ever since I came here and has always 
been prominent in the minds of people who have employed me. 

Mr. Alexander. Was it prominently before you during the consti- 
tutional convention of 1894? 

Mr. Brackenridge. Yes, sir; I was here then. 

Mr. Alexander. And they sent a committee over here to make 
inquiry? 

Mr. Brackenridge. Yes, sir. 

Mr. Alexander. Were you examined by that committee? 

Mr. Brackenridge. No; I was not, but I was here at the time. 1 
think we have given the subject as thorough a stud37^as anybody. We 
have been here long enough. I was emploj^ed by the first power com- 
pany, that is the Niagara Falls Power Company, which began electrical 
development; the only one that was here before was the Hj^draulic 
Power and Manufacturing Company. 

Mr. Alexander. The Schoellkopf Company? 



214 PRESERVATION OF NIAGARA FALLS. 

Mr, Brackenriixje. Yes. We worked away on it for fifteen years. 

Mr. Cauy. The depth on the Canadian side being so much greater 
than that on the American side, if the water is restored to this side by 
the irrigation company, as proposed, and the Canadian goveriunent 
then allowed the diversion that they claim, as Judge Burton stated, 
would not that still leave the Cajiadian Falls much deeper than the 
American Falls as at present- the How over it^ 

Mr. Hi{A('KENRiD(!E. Certainl3^ 

Mr. Cauy. And, therefore, as that depth over the Canadian Falls is 
so great at present that the eye can not measure it at all, the beauty of 
those Falls would remain unimpaired^ 

Mr. BuACKENRincE. Most of the fall, Mr. Gary. There are shallow 
places near the edge; there are places near Coat Island would proba- 
bly l)e entii'ely bare. 

Mr. Alexander; -Did you see the Falls to-day, Mr. Brackenridge? 

Mr. Bragkenridoe. 1 did. 

Mr. Alexander, llovv does it compare to-day with other days? 

Mr. Brack ION KiDGE. The water was very low indeed. 

Mr. Alexander. Those sides— the Goat Island side, on the Horse- 
shoe — seemed to be well lilled with water to-day, clear up almost to old 
Terrapin Tower. Did you observe that? 

Mr. liRACKENRIDGE. YcS. 

Mr. Alexander. It occurred to me I had never seen it running quite 
as full. 

Mr. Brackenridge. The water was not high to-day. It was nmch 
higher yesterday than it was to-day. Well, you saw the gauge up 
there at Port Day. I thiidc that gauge registered about 560. Well, 
the water in the Niagai'a River has t)eeji up to .5()4 or 5(55. 

The Chairman. Would not that increased ilow on the American 
side, caused by the removal of that reef, cause a part of the water to 
flow around on the farther side of Goat Island, where the fall is shal- 
lowest there. Would it all go inside of Goat Island? 

Mr. Brackenridge. No, sir; it would not unless the reef at that 
point were removed — the I'eef just a))ove that point — and that was 
why 1 mentioned the removal of the reef below Grass Island as well as 
the oik; al)Ove (jrass Island. 

The Chairman. If both were removed, it would cause a portion of it 
to go on the farther side of Goat Island? 

Mr. Brack p:n KIDGE. It would all come on this aide. That was the 
ol)iect in removing the lower reef. 

The Chairman. That is, in your judgment, it would all come on 
this side of Goat Island? 

Mr. Brackenridge. Yes, sir. 

The Chairman. Anything further, Mr. Alexander? 

Mr. Alexander. Nothing further. The examination has been very 
interesting, Mr. Brackenridge, indeed. 

The Chairman. Is there anything further, Mr. Mayor. 

Mayor Cutlku. There are several ])i-omin(mt n)anufacturers here, 
notably Mr. Acheson, of the Acheson (Jraphite Company, and Mr. 
Hall, of the Pittsburg Reduction Company, who can tell you how they 
are involved in the provisions of this bill. As a layman, will you 
allow me to ask OTie question? You have stated two or three times 
t hat the Canadians charge us with 1(),()00 cul)ic feet per second diverted 
at Chicago. Do not they credit you anything for the water they take 
through the Welland Canal for power [)urposes? 



PRESERVATION- OF NIAGARA FALLS. 215 

The Chairman, That is said to be comparatively a small quantit3\ 

Mayor Cutler. They are developing- a good deal of power over 
there. 

The Chairman. That would be included in the amount they would 
give as their diversion. 1 think the estimate of 1,800 cubic feet has 
been given on that. That would be included, however. 

Mr. Edward G. Acheson. I have reduced what I have to say to 
writing, and it will take about four minutes. 

STATEMENT OF MR. EDWARD G. ACHESON, OF THE INTERNA- 
TIONAL ACHESON GRAPHITE COMPANY. 

Mr. Acheson. As a resident of Niagara Falls since 1901, and a daily 
visitor there previous to that back to 1895, I can assure you that there 
has been no appreciable diminution in the Falls as the results of the 
existing power development. 

I have ventured to come before you and call your attention to what 
I have to say on the grounds of my being a consumer of electrical 
power as developed at Niagara Falls, I having created two industries, 
which are equipped in the aggregate for 8,000 electrical horsepower. 
The first industry started in 1895 was that of the Carborundum Com- 
pany, the second started in 1899, that of the International Acheson 
Graphite Company. 

The above industries, which 1 represent, ma}' not be properly spoken 
of as typical of those which have taken advantage of the Niagara Falls' 
development, that is to sa}-, in all respects, they being rather unique; 
but they answer well to illustrate the tremendous advantages that have 
accrued to new industj'ies as the result of the utilization of a small 
part of the Falls of Niagara. These two enterprises, which I repre- 
sent, are even more than national in character — their products are of 
international value. 

It is possible that an opinion prevails among the mass of the people 
of the United States that the utilization of Niagara Falls has been of 
a selfish, local character. Of course, it must be admitted that no 
enterprise of any magnitude would be undertaken without the possi- 
bility of profits accruing to the projectors, but in carborundum and 
graphite, the plants I have established, the profits derived b}- the par- 
ties interested in the plants are, I believe, much smaller than those 
derived b}^ hundreds of manufacturing establishments scattered 
throughout the United States and Europe. 

Carborundum has l)een admitted, even by its competitors, the emery 
interests, to have been a great educator to the American manufacturers 
in the matter of abrasives, and my belief is that it has been, and now 
is, of inestimable value to the American manufacturers. Graphite, as 
made by my methods, has also proved of extraordinary value to many 
American manufacturers. With your permission, I will quote from a 
paper read by Prof. C. F. Burgess, of the University of Wisconsin, 
before the American Electro-chemical Society on September 20, 1905. 
This paper was devoted to a review of the electro-chemical industries 
of the United States in 1904. After commenting at some length on 
the products of the International Acheson Graphite Company, he says: 

This industry, while being an important electro-chemical one in itself, has been 
found to be of great assistance in promoting industrial electro-chemical development 
by furnishing for electrode purposes a material of such excellence that the success of 
several electro-chemical industries may be said to depend thereon. 



216 PRESERVATION OF NIAGARA FALLS. 

This is an unsolicited comment on the vahie of the' productions of 
this company to numerous manufacturincr interests of the United 
States. During the year 1904 the graphite company manufactured 
4,500,000 pounds of graphite, and this material, as stated by Professor 
Burgess, was in many cases necessary to the existence of other 
industries. 

You may say, while admitting the value of the products manufac- 
tured at Niagara Falls, that they might be made in other localities, and 
not at the expense of the reduction of the cataract. In 1894 the Car- 
borundum Company had its home at Monongahel* City, Pa., on the 
Monongahela River, in the very heart of the bituminous-coal territory 
of the United States. They were operating a steam -generating elec- 
trical plant of 184 horsepower. The cost of the product was so high 
that but one-half of it was sold. The company being comparatively 
poor, it was out of the question to consider the construction of a steam- 
generating one of one or more thousand horsepower, its resources 
being required for the development of the details of the manufacture 
of its own product. 

At this time the completion of the Niagara Falls Power Company 
was approaching and I thought it wise to take advantage of the large 
capital invested in the power plants of Niagara Falls, and did so. In 
the year 1904 the carborundum company in its new house at Niagara 
Falls was equipped with a power capacity of 5,000 electrical horse- 
power, and manufactured over 7,000,000 pounds of carborundum 
during the year. 

The development of carborundum and graphite, as manufactured by 
my methods, I believe, would have been practically impossible and 
certainly would have been immensely retarded had it not been for the 
utilization of the Falls of Niagara. 

As guardians of the interests of the people it is of course pertinent 
for you to inquire the value of the interests jeopardized, if such be 
the case, by the proposed bill before Congress. The capitalization 
of the carborundum compnny and the International Acheson Graphite 
Company is together $1,100,000. As I have tried to show in the 
foregoing, any injury done to these interests, even to their complete 
extinction, would be felt detrimentally by many others throughout the 
country to an even greater extent. 

The development of power at Niagara Falls I consider of immense 
importance to the industries of the United States, more particularly 
as a means of encouraging the development of new ones. It becomes 
in a way a nursery, and any acts interfering with or decreasing the 
advantages possible of attainment are certainly not to be encouraged 
and should not be tolerated. The advantages I have obtained may be, 
in a manner, duplicated next year, and again the following year by 
others. 

The Chairman. You are using 5,000 horsepower in this carborundum 
company ? 

Mr. Acheson. Yes; and 3,000 in the graphite. 

The Chairman. How much per horsepower do you pay, or is that 
a secret contract? 

Mr. Acheson. I guess it is commonh' known. They start with $20 
per year per horsepower for 1,000 horsepower, and that i:> diminished 
as you use it at the rate of 50 cents per horsepower up to an $18 limit. 

The Chairman. Eighteen dollars is the minimum? 



PRESERVATION OF NIAGARA FALLS. 2l7 

Mr. AcHESON. Yes. 

The Chairman. Down there by the Monongahela River, how much 
would the power cost per horsepower? 

Mr. AcHESON. Well, with the little plant that I had — of course, 134 
horsepower is rather .small — it was costing from $60 to $70. 

The Chairman. Suppose you had had seven or eight thousand horse- 
power down there; what would it cost? 

Mr. AcHESON. Probably $35, or $40, probably. 

The Chairman. So that the cost of the power here is approximately 
half what it would be there ? * 

Mr. AcHESON. Yes; but to me the great advantage I spoke of was 
the fact of being able to call upon 1,000 horsepower; to pay monthly 
for the power without investment of the capital. 

The Chairman. You can change the amount at will? 

Mr. AcHESON. Yes, sir. 

The Chairman. How much more horsepower do you contemplate 
using in the next year or two? 

Mr. Acheson. That would be extremely difficult to say. We are 
hoping to use a great deal. 

The Chairman. Twice as much? 

Mr. Acheson. Possibly not; within two or three years. 

The Chairman. Do you know how much horsepower is used here 
at the Falls that is derived from the water power? 

Mr. Acheson. No: I have no exact figures on that now. 

Mr. Franchot. Fifty-eight thousand, without going into very small 
amounts. 

The Chairman. And probably it would be more than that? 

Mr. Franchot. Yes. 

The Chairman. I believe that is all, Mr. Acheson. 

STATEMENT OF MR. ARTHUR V. DAVIS, GENERAL MANAGER OF 
THE PITTSBURG REDUCTION COMPANY. 

Mr. Davis. The Pittsburg Reduction Company is a company with a 
capitalization of $3,600,000. Our business is the manufacture of alumi- 
num by an electric smelting process, aluminum being reduced from 
its ore. We are the only manufacturers of aluminum in the United 
States and we have a total investment in our business of about $9,000,- 
000. The electric smelting portion of our business, which is princi- 
pally done at Niagara Falls, constitutes only the backbone of our 
entei'prise, although we have large investmeifts, as 3'ou might say, 
prior to Niagara Falls and subsequent to Niagara Falls; that is to sa}'^, 
we have large investments in ore lands and a large investment in a fac- 
tory for the purification of the ore, and also investments in the fabri- 
cation of the aluminum after it is made — rolling it into sheet, fabricating 
it into finished articles; but, of course, all of these investments depend 
entirely upon the smelting of the aluminum from the purified ore, 
which, as I say, is done principally at Niagara Falls, so that our entire 
industry is dependent upon our smelting plants here, or practically so. 

We have one other plant, but nothing as large as this plant here. 
We use now about 20,000 horsepower. There has been a great short- 
age of aluminum in the market this last year, and we have aimed to 
supply that shortage by the building of another plant, for which we 
have already contracted. We are building a plant of approximately 



218 ■ PRESERVATION OF NIAGARA FALLS. 

36,000 horsepower and have contracted to take 27,000 horsepower, but 
expect, of course, to take the entire 3(),000, which is the capacity of 
the plant, additional to what we have here already. Those contracts 
have already been placed for several months, and it would be impossi- 
ble for us to withdraw from those contracts, as probabl}- the buildings, 
machinery, etc., are now ready for shipment, in whole or in part, to 
Niaoara Falls. The total investment which will be made in this new 
addition will be about a million dollars. We employ about 2,500 to 
2,600 men in our industry as a whole, and all of these men are, of course, 
depend(Mit upon the smeltiii^ process. 

In addition to that, we are the only manufacturers of aluminum in 
the United States, and there are dependent upon us a great many other 
industries. Without ever having- figured it up, 1 should say there 
were probablj' tifty or a hundred companies who use aluminum exclu- 
siveh^, make nothing else but- aluminum goods. Then there are 
thousands of companies who use aluminum to a certain extent. In the 
manufacture of armor plate and in the manufacture of man}" grades of 
steel, aluminum is a necessary ingredient; and so it is in a great many 
others — manufacture of automobiles, cooking utensils, etc. Alany com- 
panies are dependent to a certain extent upon our continuing the 
manufacture of aluminum and upon our being able to meet not only 
the present demand but the constantly growing demand in the United 
States, and it is needless to say that to deprive us of our opportunity 
to enlarge here and possibly to deprive us of our opportunity to 
manufacture here at all, would be a disaster to the Pittsl)urg Reduc- 
tion Compan}^ the extent of which can be measured by the magnitude 
of our enterprise and also by the needs of the country for our product. 

I might say further along the line of the questions that you asked 
Mr. Acheson that we did manufacture aluminum by steam power in 
Pittsburg, where, perhaps, electricity can be produced b}" steam as 
cheaply as any place in the world. We kept records of our cost, and 
it ran about !|40 per horsepower; but it would be impossible for us to 
manufactui'e aluminum and sell it at a price at which the market can 
consume it if we are obliged to resort again to steam power. When 
we came here to Niagara Falls the price of aluminum was 60 cents — ■ 
it might have been 55 — but it was in that vicinity, and due to the 
opportunity which we have enio3'ed here to get the cheap power and 
to enlarge our business we are now selling aluminum at considerably 
less than half that price, which puts aluminum into a class which is 
comparable with copper and with zinc and other metals of that char- 
acter; but. of course, if we should be obliged to go back again we 
would be entirely removed from that class, and the uses of ahiminum 
would then be restricted as they were then to the comparatively few 
uses where the inherent qualities of aluminum render it necessary — • 
lightness, or its peculiar chemical properties, or otherwise. 

The Chairman. The advantages of aluminum, I suppose, are its 
lightness and its tensile strength? 

Mr. Davis. Yes; and particularly its noncorrosive cjuality in the 
?teel manufacture, its chemical qualities. 

The Chairman. What chemical ({uality specially? 

Mr, Davis, It has the quality of absorbing the oxygen, which is the 
cause of the blowholes in the steel, thereby rendering the steel solid. 
I think it is safe to say that the cast-steel industry, which is an indus- 
try which has sprung up in the last live or ten vears, would be ruined 



PRESERVATION OF NIAGARA FALLS. 219 

without the use of aluminum, because that has been the ^reat difficulty 
in steel castings— to get them solid. 

The Chairman. The main use of aluminum with steel, then, is in 
steel castings'^ 

Mr. Davis. No, sir. The production of open-hearth steel is so 
much greater in tonnage that even though the percentage of aluminum 
used in it is so much less, the total consumption of aluminum in open- 
hearth steel is considerably greater than in the steel castings. 

The Chairman. From what company do you obtain power? 

Mr. Davis. We obtain power from the Niagara Falls Power Com- 
pany and also from the Niagara Falls Hydraulic Company, and this 
new enlargement that we speak of is to be from the Niagara Fall 
Hydraulic Company. 

The Chairman. How many horsepower are j'^ou using now? 

Mr. Davis. We are using now about 20,000. 

The Chairman. Singularly, in this report made by the International 
Commission, it places the quantity used by j^ou at only 8,000. 

Mr. Davis. That is incorrect. 1 may be wrong within a few 
hundreds. 

Mr. Hall, of the Pittsburg Reduction Company. We are using 
actually 6,000 from the Niagara Falls Power Company at one plant 
and 15,000 or 16,000 from the Hydraulic company at our other plant. 

The Chairman. Does your company go under an}^ other name than 
the Pittsburg Reduction Compan}^? 

Mr. Hall. No, sir. 

The Chairjian. That would simply include what is used at that one 
plant and not the other? 

Mr. Hall. I think they must have assumed that our plant up here 
was our only plant. 

STATEMENT OF MR. S. P. FRANCHOT, OF THE NATIONAL ELEC- 
TROLYTIC COMPANY. 

Mr. Franchot. I desire to tile a statement of the average of the 
wind: For the last five years, westerl}' winds, 69 per cent; calm, 3 per 
cent; easterly winds, 28 per cent. 

The Chairman. Where is this obtained from ? 

Mr. Franchot. The Weather Bureau? 

Mayor Cutler. Mr. Price, the manager of the carbide works, a very 
large manufacturing plant, would like a few minutes. 

STATEMENT OF MR. E. F. PRICE, GENERAL MANAGER OF THE 
UNION CARBIDE COMPANY. 

The Chairman. I see by this statement you use 17,000 horsepower? 

Mr. Price. I prepared no statement in regard to our business, but 
we use now 15,000 horsepower at these works here. 

The Chairman. From what compan}^ do you obtain that? 

Mr. Price. From the Niagara Falls Power Company. Under our 
contracts with that company we have the call on 25,000 maximum, and 
our works have been constructed with the view to utilizing the full 
25,000. We have another large works at Sault Ste. Marie. We 
manufacture calcium carbide, from which acetylene gas is generated, 
and we maintain in the United States some 40 warehouses and handle 



220 PRESERVATION OP NIAGARA FALLS. 

our product throughout the whole country. It is used very largely 
in lighting- individual plants and small towns and villages. We have 
some 250 towns and villages lig'hted exclusively with acetylene and 
with a good many of those we have long-term contracts. 

The Chairman. The making of acetylene gas is the principal use of 
your product? 

jNIr. Price. Yes, sir. As has alread}^ been said, there are a lot of 
industries dependent upon our industry. There are a lot of manu- 
facturers of acetylene appliances. There are several millions invested 
in that business alone, and they are scattered throughout the country. 
The Union Carbide Company has $8,000,000 of capitalization. 

The Chairman. How long have your works been established here? 

Mr. Price. The Union Carbide Compan}' was formed in 1898. The 
carbide business started two or three 3'ears before on an experimental 
basis. We spent a lot of money in developing the business and finally 
got it oo a commercial basis. 'A v^er}' large item of cost in the manu- 
facture of calcium carbide is power, and from an economical stand- 
point water power is the only thing we can use. If we used steam 
power we could not compete with other forms of illumination that we 
have to compete wit^. 

The Chairman. Is yours the only concern in the country making it? 

Mr. Price. Yes, sir;' we are the exclusive manufacturers. 

The Chairman. Were you located at any other place before here ? 

Mr. Price. This business started in a very sniall way in North 
Carolina, but it has grown from nothing to its present size. 

The Chairman. Is that all you have to say? 

Mr. Price. That is all, except we feel our business would be ruined 
if we could not get water power. It is not a business that you could 
operate with small water power. In a plant like ours it is necessary 
to have power in large blocks to manufacture economical^. 

The Chairman. One great advantage of the power 3'ou can obtain 
here is the flexibility — that is, you can obtain more or less? 

Mr. Price. You can gradually extend your plants. 

The Chairman. I believe that is all. 

STATEMENT OF ALFRED W. GRAY, ESQ., COUNSEL OF THE WOOD- 

FORD ESTATE. 

Mr. Gray. I desire to present the claims of the W^oodford estate, 
on behalf of which I appear. I believe the power plant concerning 
which I speak is the oldest one on the whole frontier. The mills were 
built back in 1859 at Suspension Bridge, as it was then called — flour 
mills and gristmills — and the power plant was constructed at the head 
of the rapids below the Falls. The water is taken at the level of the 
river, just above the rapids, into a headrace some few rods long, and 
there dropped 8 or 10 feet, and then wasted through the tailrace into 
the rapids below, taking the benefit of the fall in the rapids. 

The Chairman. You have a head, then, of only 8 feet? 

Mr. Gray. Eight to 12 feet, I believe, depending somewhat on the 
condition of the water in the river, and for the last fifty years power has 
been developed there, up to the time of Mr. Woodford's death, a few 
months ago, excepting also a time when it was interrupted by the 
building of the Gorge road. The power was conveyed from this plant 
to the high bank by cable. This would come within the prohibition 



PKESERVATION OP NIAGARA FALLS. 221 

of your bill, and yet the spirit of the bill, of course, aims at protecting 
the Falls, so I assume we are outside of the spirit and yet within the 
letter of the bill. 

The Chairman. How much horsepower do j^ou create? 

Mr. Gray. Under the old-fashioned power plant it is approximately 
100 horsepower. 

The Chairman. How many cubic feet do you withdraw from the 
river? 

Mr. Gray. I do not know. 

The (Chairman. You have never computed it that way? 

Mr. Gray. No, sir. 

The Chairman. It is only 100 horsepower? 

Mr. Gray. That is all. It is available for operating- the mill at the 
top of the bank, and this estate is the owner of property along- the river 
and their riparian rights are probabl}^ considerably in excess of what 
they are using- now. 

The Chairman. Do you contemplate any increase? 

Mr. Gray. Yes. That has been contemplated for some two or three 
years, and the value of the property at the top of the bank and at the 
foot of the bank depends almost entirely on the riparian rights there, 
and if ajiything should interfere to destroy that power, our rights to 
take the water there, it would practicall}^ be a confiscation of this 
whole property. 

The Chairman. To what extent are you contemplating increasing 
the horsepower? 

Mr. Gray. That has been a matter which I do not know very much 
about as to what extent they do contemplate increasing it. I, in fact, 
do not know the number of feet it extends along the river at that 
point, nor what the full fall is that they could obtain there. There 
were negotiations on taking it at that point and discharging it lower 
down, which would contemplate developing several thousand horse- 
power, depending on how far down the river they would go and how 
much of the benefit of the fall they would take. But whatever might 
be done in that connection, of course, would not interfere with the 
scenic beauty of the Falls nor with the scenic beauty of the rapids, 
because the river at that point is supposed to be very deep, the banks 
are practically perpendicular, and it is simply lowering your rapids a 
little bit, but the same spectacle is presented. 

The Chairman. Just what is the point at which you divert the water ? 

Mr. Gray. It is at Suspension Bridge — by the two bridges there. 

Mr. Alexander. Where do you put it back? 

Mr. Gray. Just below, a few rods; all that was necessary for the 
running of this mill above. 

Mr. Alexander. You put it back where they take the photographs ? 

Mr. Gray. Yes; right at that point. 

The Chairman. What is the length of j'our riparian rights in the 
river? 

Mr. Gray. My recollection is— I haven't the exact data — that it 
extends along there some six to eight hundred feet, something like 
that. 

The Chairman, Do you have any franchises for that from the State ? 

Mr. Gray. Not that I know of. I think that the rights we have 
are those of a riparian owner, because we take it on our property and 
discharge it on our property, and under a decision of the court of 
p N F— 06 15 



222 PRESERVATION OF NIAGARA FALLS. 

appeals, where this matter was litij^ated to a certain extent, our rig-hts 
were confirmed. 

The Chairman. That is, it was maintained you did not require a 
franchise from the State? 

Mr. Gray. That question was not, perhaps, directly up in that case. 
It was up in another case. 

The Chairman. In which they said it was not navigable at the place 
in question? 

Mr. Gray. Yes; where it was not navigable. There is, I think, a 
case decided within two years where the court of appeals held prac- 
ticalh^ that proposition. 

The Chairman. That was the case in regard to whether it should be 
taxed as property or a franchise, is it not? 

Mr. Gray. That is the case. 

The Chairman. I know the case. The basis of the decision appar- 
ently was that the stream was not navigable and the State did not own 
the water in the bed of the stream. 

Mv. Gray. That is the situation at this point, that it is not naviga- 
ble. I have made a brief memorandum of the facts touching this, 
which I desire to hand in. 

The Chairman. Have we the cases you have referred to? 

Mr. Gray. That does not refer to any legal cases. That is simply 
a brief recital of the facts. 

The Chairman. That is all. 

Hearing closed. 



Committee on Rivers and Harbors, 

House of Representatives, 

Tuesday^ May 1, 1906. 
The committee met at 11 o'clock a. m., Hon. Theodore E. Burton 
(chairman) in the chair. 

STATEMENT OF FRANK W. STEVENS, ESQ., OF JAMESTOWN, N. Y. 

Mr. Chairman, I have been requested to appear before 3^our com- 
mittee not on the facts or the policy of this question of the bill rela- 
tive to Niagara Falls, but simply on the question of the jurisdiction 
and authority of Congress to enact the proposed legislation. It would 
be equally satisfactoiy to myself to file later on, in a few days, a brief 
which will cover all that I can say here. 

The Chairman. We should be glad to have you file the brief, and to 
proceed now orally, Mr. Stevens. 

Mr. Stevens. The immediate occasion for my addressing you arises 
from what I have discovered in 3^our printed proceedings, and I beg 
to take yowY time for a moment while I read one or two expressions. 
In the communication from the Secretary of War to the President, 
which is printed in your proceedings, the letter being dated the 20th 
of March, I find this language: 

The recommendations of the Commission of legislation necessary and desirable to 
prevent the further depletion of water flowing over the Niagara Falls suggests the 
question whether such legislation is within the limitations of tlie legislative power of 
Congress, when applied to nonnavigable parts of a stream wliich is within the borders 
of a State and which is only partly navigable, if the use of the water to be inhibited 
does not affect navigation in the navigable part of the stream below . 



PRESERVATION OF NIAGARA FALLS. 223 

I also find in the communication from the Attorney-General to the 
Merchants' Association of New York, on page 6 of Senate Report No. 
1611, the following language: 

In other words, I have not attempted to do more than indicate that without denial 
of the initial rights and functions of the State there is a great unsettled question here 
of the nature and scope of the Federal power. 

So that we have two of three officers of the Government expressing, 
after some consideration of the case, some degree of uncertainty as 
to the scope of the powers of Congress in this matter. In addition to 
this, I find by consulting your printed record that four gentlemen of 
high professional standing and personal character at the bar have 
deliberately placed themselves on record before you on this question, 
in the language prepared by Mr. Hanson, who says: 

Our position is that it is not within the power of Congress to exercise any control 
of the navigable waters of the United States excepting for the purpose of controlling 
navigation in the interest of interstate and foreign connnerce. 

Mr. Humphrey. Which four gentlemen do you refer to? 

Mr. Stevens. Franklin D. Locke, who represented the Ontario 
Power Company, and who is a gentleman of the highest standing 
at the Bulfalo bar; Mr. Hanson, who is the attorne}" for the Niagara 
County Irrigation and Water Supply Company, which is the same 
thing as the General Electric Company; Mr. AVhitridge, representing 
the Niagara Falls Power Company, and Paul D. Cravath, who repre- 
sented the Niagara, Lockport and Ontario Power Company. All of 
these gentlemen brief!}" expressed themselves on this proposition that 
the sole power in relation to the river Niagara is derived from the 
power of the General Government over navigable streams in relation 
to commerce. They also deny that you have any power in case the 
water is taken from a nonnavigable part of the stream and restored 
before the navigable part is reached, upon the proposition, I suppose, 
that such diversion and return of the waters can not by any possibility 
aft'ect the navigability of the .stream and that Congress has no other 
jurisdiction except over the navigability of the stream. 

And it is perfectly fair to say that that position does not in my judg- 
ment impugn the proposition that Congress has control over a navi- 
gable stream, both in its natural navigable and nonnavigable portions, 
provided an interference with the nonnavigable portion may, either 
directly or indii-ectly, aft'ect the navigable. That question was up in 
the Rio Grande case, in l74th U. S. 

This expression of doubt on the part of the Attorney-General and 
of the Secretary of War, and the emphatic declarations of the four 
gentlemen I have named, have led some of the friends of the preser- 
vation of Niagara Falls to request me to address you very briefly on 
the question of whether there is any power in the General Govern- 
ment outside of the question of its being a navigable stream, outside of 
the powers conferred by the Constitution and the decisions of the 
courts over such streams. 

I suppose there are only properly two ways of addressing you on 
that question. The first is to briefly and concisely state the proposi- 
tion, and leave you to work out the illustrations and the various rami- 
fications into which the general doctrine would go; and, second, to 
make an elaborate legal argument, full of citations of authorities and 
the like. The second I should hope jon would n5t tolerate at this 
stage of the discussion, and it will content me fully to express as 



224 PRESERVATION OF NIAGARA FALLS. 

briefly and concisely as it may be possible for me those considera- 
tions which seem to me decisive, and upon which 1 venture to say that 
this question ought to be one of first impression, that the General 
Government has full and absolute power over the waters of a navi- 
gable river. 

If it has any powers over that river other than the navigability 
proposition, which I waive entirely at this moment, I suppose that it 
must be either because it has rights in the stream which it is bound to 
protect, or that it owes duties and obligations in the stream which it 
is the tluty of the General Government to enforce. In either case, I 
apprehend that Congress would have full and absolute authority to 
protect the right or to enforce the obligation. So that the inquiry 
to which I ask you to direct your minds is, first, w^iether the General 
Government, whether the United States, has any rights in a navigable 
river, outside of the question of its navigability. Assume, if you 
choose, that the stream from Fort Erie to Fort Niagara were 
in the condition of the Whirlpool Rapids, absolutely nonnavigable. 
What would be the rights of the General Government in that case? 
We have to consider that it is a natural boundary of the country; that 
as such it affords a most important means of defense. If the Niagara 
River were abolished — wiped off of the map — and nothing but a level 
prairie occupied its place, unquestionably the defenses of the United 
States upon that frontier would be seriously impaired. I take it that 
the fortification of the city of Buffalo, in the case of any difhculty with 
Great Britain, would require serious attention at the hands of Congress. 
It now requires no attention at all by reason of the natural defense 
afforded by Niagara River. 

This question is not new in the history of the diplomacy of the 
United States. You will And by referring to the proceedings of the 
Commissioners negotiating the treaty of Ghent, that one of the demands 
made, or rather a part of the instructions issued by the British foreign 
office to its commissioners, was that a part of the eastern shore of the 
Niagara River should be conceded to Great Britain. You will also 
find that as a part of the history of the case, leading up to those nego- 
tiations, it was a demand on the part of Canada that the entire eastern 
shore of the Niagara River should be ceded to Canada. The British 
foreign office did not go as far as that, but that is simply to illustrate 
that the Niagara frontier has always, in the course of our relations 
with Great Britain, been an important part of our national defenses. 
Now, I need not })ursue that idea any further, because what follows 
from it is so plain a deduction that further argument on my part you 
will have> anticipated already. 

Suppose that Great Britain should attempt (and it is entirely prac- 
ticable from an engineering point of view to do so) to divert the waters 
of the Niagara River from the channel, and leave but a dry bed there. 
Suppose that it should start the digging of the channel at Fort Col- 
burn, following the line of the Welland Canal, would or would it not 
be a subject of diplomatic intervention on the part of the United 
States? I insist that the General Government as a part of its func- 
tions as a government has the absolute right to protect its boundaries 
wherever they may be and whatever they may be, and if it possesses a 
natural boundary of great value like the Niagara River, it can protect 
it against depletion or diversion not only by the adjoining power, but 
from depletion and diversion at the hands of its own citizens. 



PEESERVATION OF NIAGARA FALLS. 225 

It may be said that it is farfetched to suppose that the Niagara 
River will ever be absolutely diverted. Granted, arguendo; it is a 
question of right; whether the time has come to exercise the right, 
whether there are any dangers, either present or in the immediate 
future, it is simply a question of fact and does not touch the right of 
the General Government to protect that river from depletion and diver- 
sion whenever, in the judgment of Congress, it is time to do so. 

There is in the same connection another proposition which 1 have 
not seen adverted to in any of the discussions before your body, but 
which probably touches or infringes to some extent upon the naviga- 
bility proposition, and that is this: You have undoubted jurisdiction 
over the Great Lakes within the boundaries of the United States, and 
anvthing which mav in any degree tend to impair the navigability of 
those lakes or interfere with the harbors upon those lakes is certainly 
_within the jurisdiction of Congress. 

Now, the Niagara River is the outlet of Lake Erie, and by any inter- 
ference with Niagara River, either by building a dam or deepening 
the channel, it is theoretically possible that the navigability of Lake 
Erie ma}' be interfered with to some extent, either by damming the 
lake or lowering its level. A lowering of the bed of the Niagara 
River would unquestionabl}^ other things remaining the same, lower 
the level of the waters of Lake Erie, and so it seems to me that you 
would have full power and authority, so far as you could within the 
boundaries of the United States, to prevent anything which would 
lower the waters of Lake P^rie, and 1 insist that it is entirely possible 
that the proposition now pending before you may affect the waters of 
Lake Erie and their level. 1 am not going to indulge in an\' engi- 
neering cases, but use the language of Mr. Randolph when he was 
before you regarding the Chicago Drainage Canals 

1 notice that he there stated that there had been great speculation as 
to the effect upon the level of Lake Michigan and Lake Huron b}' the 
diversion of the waters into the Chicago Drainage Canal, and he stated 
that the maximum effect of the diversion by that canal with its capacity 
was that it would or might lower the mean level through a series of 
years 1 foot. I think that that was based upon an estimate of 9,000 
cubic feet per second. It is not material whether I am right in that 
or not; it is a small quantity. Yet the Niagara County Irrigation and 
Water Supply Company, which is the corporate form under which the 
General Electric Company wishes to use the waters of this river, is 
proposing to take from the Niagara River several miles above the 
Falls, through a canal which they say will divert double that amount; 
and if they have any rights under their charter from the State of New 
York, they can divert any amount they choose. 

They say that to take from the Niagara River will increase its 
capacit}'. Any taking of waters from the river where they propose 
to take will unquestionably hasten the flow, in my judgment, above 
from Lake Erie, leaving the same exit which is now aflorded by the 
river passing the Falls and the works of this company; and they claim 
the right — and if there is any right under the charter from the State 
of New York, they can do it — to construct a canal of any size they see 
fit, limited only by the commercial possibilities of the case, and what 
those possibilities are no man can guess. These questions have arisen 
within the last twenty years. All the questions relating to a natural 



226 PRESERVATION OF NIAGARA FALLS. 

water boundaiy of tlio country arc entirely new, because until within 
a few years such a thing- has not been jiossible. 

It is now possible, as is shown by what is g'oing- on at the Niagara 
River and at the Chicago Drainage Canal, and where that possibility 
stops I do not know, and I apprehend that no living person can with 
any contidence predict. So that I say that you have the right to con- 
trol the waters of the Niagara River upon the ground that it is an out- 
let of Lake Erie and that any interference with the waters of that 
river may interfere with the level of the waters of Lake Erie; and 
you are the judges of that question, and not the courts, as has been 
argued here, upon the navigability proposition; and I apprehend that 
any serious lowering of tlie level of Lake Erie would be something 
that would not be tolerated b}^ Congress or this committee for an 
instant. 

So far as to the rights concerned. We turn now to another propo- 
sition, as to whether the United States owes any duty regarding this 
river, whether it is under any international obligation, any obligation 
to the Government of Great Britain, to prevent diversion of the 
waters of the stream. We may separate that question entirely from 
the question of fact as to what has been doing upon the Canadian side. 
We may, for the purpose of the legal argument, I think, stand squarely 
upon the proposition that Great Britain objects to any diversion of 
the waters of that river, and, so objecting, it could be made a matter 
of diplomatic protest, and how much further it might be carried it is 
not necessary for me to say, that the Government of the United States 
should permit that diversion of that river. It is physically possible 
for either Government to divert that river entirely from its present 
course and turn the waters of Lake Erie into Lake Ontario either 
east or west of the present couTse of the stream. 

Now, suppose that attempt were made. Serious international com- 
plications would arise if it was made by the Government of either of 
the adjoining powers. Suppose that attempt is made by the indi- 
vidual citizens of either government, wdiat kind of a question have 
you there? Is it not a part of the duty of this nation, if protest were 
made, to prevent the people, the citizens, or any person, whatever 
their jurisdiction, diverting waters? And is it not equally the duty of 
Great Britain to interpose the same objections upon its own side of the 
stream? There are other international complications which might 
arise. If, as is claimed, the riparian proprietors have a right to the 
use of the waters of the stream as they How along, the same as any 
ordinary stream flowing through private lands — if the people upon the 
Canadian shore have the right to divert the waters for power and then 
return them to the stream, they have the right to have the current 
flow in its usual and customary manner in regard to the ordinary usag'e 
in regard to ordinary streams. 

That is the proposition upon which all this power must rest. And 
yet the proposition is made seriously here to divert from the Canadian 
side waters to the American side of the stream, to enhance the flow of 
deepen the channel at the head of Niagara Falls, and they say that it 
will increase the flow of the stream a large percentage. Now, if you 
have the right to select that proposition, you have the right to 
the American Falls. That is the proposition of this company,' to 
deepen the channel sufliciontly to take the whole body of the stream 
there. If you have the right to divert, to make the channel 200 feet 



PRESERVATION OF NIAGARA FALLS. 227 

wide and 30 feet deep, as the General Electric Company proposes to 
do, you have the rig-ht to permit a channel there which will divert the 
entire stream, if it is ph3-8icall3^ possible, and of course it would be by 
dij^oing your trench deep enough and wide enough, and at once we 
would have a serious international complication on the ground of 
interfering with the rights of individuals, and sacrificing them to the 
right to the use of the stream. 

There is no power in this countrj", I apprehend, which would regu- 
late that upon the American side, except the General Government. 
The State of New York has no jurisdiction. Great Britain has no 
recourse to the State of New York upon that question. 

So that you may take three propositions — first, the protection of the 
natural boundary-, which affords a natural defense against foreign 
aggression; second, the preserving of the level of the waters of the 
Great Lakes, and third, the avoidance of international complications 
b}' unduly diverting the waters of the stream; and any one, or all, of 
those propositions is sufiicient to warrant the jurisdiction of the Con- 
gress in the case of the Niagara Kiver. 

Now, if it be said that none of these touch the preservation of the 
scenery of Niagara Falls, 1 grant that. But if you have jurisdiction 
to prevent the diversion of the waters of that stream at all, there is no 
power which can inquire into the motive for the exercise of that juris- 
diction. The courts will never do, that. That has been expressly 
adjudicated by the United States Supreme Court, so far as an adjudi- 
cation can be made, in a variety of cases, and I only need call vour 
attention to the case in which that court held that it was lawful to 
impose a tax of 10 per cent on the currenc}' issued by the State banks. 
The argument was then made in that case that it was not a tax; that it 
was an ulterior purpose; that it was simpl}- to wipe out something, 
instead of afi^ording a revenue. The whole thing was disposed of in 
the opinion of Chief Justice Chase, who stated that the courts would 
never inquire into the reason of the exercise of the power; that it was 
entirely within the cognizance of Congress as to whether it would 
exercise that power. 

I will not go any further into that. 1 have simply desired at this 
time to call your attention to these propositions which seem to me 
to entirelj^ warrant your exercising such power in the case as you 
think is proper, and is required as a question of fact, and upon those 
questions, as 1 said at the outset. I do not intend to enter, except inci- 
dentalW in showing you that in the particular case in hand the parties 
seek to do a particular thing which should be prohibited. 

The Chairman. We are ver}' glad to hear from you. There are a 
couple of questions I would like to ask j^ou. One is in regard to the* 
diversion of the water. You have stated the general proposition, but 
I think the members of the committee would be glad to kave you 
elaborate it somewhat. The argument has been made here that a cer- 
tain amount of water could be withdrawn, because it would not appre- 
ciabh^ afl'ect navigation or affect the regimen of the river. AVhat do 
you say about that? Suppose Congress should take action, could the 
courts review the action of Congress? 

Mr. Stevens. That I apprehend would arise when we considered 
whether that power was exercised upon the basis of regulating the 
navigabilitj" of the river. 1 do not think that a court could in any 
wise review, or would attempt to review, the exercise of power by 



228 PRESERVATION OF NIAGARA FALLS. 

CongTess upon any of the grounds that 1 have stated. It would not 
be for the Supreme Court of the United States or any other court of 
the United States to exercise any discretion as to what means Con- 
gress should use or adopt for the purpose of protecting- the boundary 
of the United States. I will come directly to that point in a moment. 
It would not be within the jurisdiction of an}" court to say what means 
Congress should adopt to prevent the arising of the international com- 
plications which I have spoken of, because those matters are neces- 
sarily matters of discretion and matters of judgment, and must be in 
the nature of things committed to Congress and not to the courts, and 
not to the trial, we may say, of a petty jury. 

Now, if we come to the question of navigability, which I have 
entirely passed by in my argument, another question arises. Con- 
gress has seen fit, in its legislation in regard to the navigability of 
streams, to prohil^it the erection of any structure in a stream without 
the consent of the General Government which would in any way inter- 
fere with the navigability of that stream. I am stating that, of 
course, in pretty broad language. It is the act, I think, of 1890. 

The Chairman. Revised and codified in 1899 and slightly changed. 

Mr. Stevens. You know a great deal more about that than I do. 
Now, that question, or something analogous to the question, came up 
in the Rio Grande case in the 17ith U. S., and it was there distinctly 
held that the jurisdiction of Congress to legislate extended to the 
whole stream, not only to the navigable portions but to the nonnavi- 
gable portions as well, provided it could be established as a matter of 
fact that the interference with the unnavigable portion in any way 
might tend to interfere with the navigable portion. That arose in 
that way simply because Congress had not prohibited any particular 
erection in any part of the stream, but had passed a general act, and 
whether the act was to be enforced or not depended upon the outside 
fact, something outside of the law, and of course that fact must be 
determined by somebody, and could only be determined by the court 
when the question arose. 

So that if Congress passes a general law prohibiting something when 
that something works a particular result, whether the particular result 
is or is not worked in a given case is necessarily a fact for the court. 
But the question now which I understand you have in mind — at least 
your language points in that way — is this: Suppose that Congress 
undertakes to exercise its own judgment as to whether some obstruc- 
tions in a nonnavigable portion of the Rio Grande River would impair 
navigation of the navigable portion, would that diversion stand unless 
a court concurred in the correctness of the conclusion? Is that the 
question ? 

The Chairman. That is in the same line. 

Mr. k^EVENS. Now, I apprehend that we might suppose a variety 
of absurd things, so extreme, so radical, so ridiculous, that they would 
answer themselves. For instance, we might say that the planting of 
a tree on the headwaters of the Rio Grande might affect the flow of 
some little brook and thus affect the navigability of the stream. But 
when Congress exercises its judgment on the Rio Grande River and 
says that there shall be no dam there for the diversion of the waters for 
irrigation by reason of the dangers to be inferred which will arise to 
the navigaVde portion of the stream, I see no escape from the conclu- 
sion that the judgment of Congress upon that point is final and con- 



PRESERVATION OF NIAGARA FALLS. 229 

elusive, and the courts will not interfere with it. Why? Because it 
may be in the contemplation of Congress to deepen the channel of the 
stream. 

There may be a variety of uses to which that stream will be put, 
which Congress is contemplating and of which the courts can and would 
know nothing; and the courts would not and could not interfere with 
the determination of Congress upon that. A court could only pass 
upon the question: "Does that interfere with the navigability of the 
stream as it now exists," and not as Congress contemplates that it may 
exist. It seems to me that that simple proposition answers the ques- 
tion which the chairman has put to me. 

The Chairman. To use an illustration: In the decision of Justice 
Brewer in the case to which you have referred, he speaks of the with- 
drawal of water of streams tributary to the Hudson Kiver for domestic 
purposes, such as the withdraw^al of water from the Croton River for the 
purpose of the water supply for New York City. Suppose Congress 
should pass an act that all the ti'ibutary streams emptying into the 
Hudson River should discharge their waters undiverted or undimin- 
ished into that river, what would 3^ou sa}^ as to the validity of such a 
law as that? 

Mr. Stevens. I should not wish at this time, or at any other time, 
to say anything on that question without the most exhaustive study. 

The Chairman. Suppose Congress wanted the amplest possible sup- 
ply of water in that river for the purpose of navigation, could it pre- 
vent the diversion of waters naturall}^ tributary to the stream? 

Mr. Stevens. I can see no reason at the present time. 

The Chairman. You would regard that as an extreme case? 

Mr. Stevens. Yes; I would regard that as an extreme case. But I 
should be very loth to answer an}^ question upon an extreme case 
without carefully considering just where the line was to be drawn. 
All lawyers know, and I believe that most of the members of this com- 
mittee are lawyers, that when we approach the boundaries of a doc- 
trine we get into very debatable ground. 

The Chairman. One other question upon another subject. You 
have stated your opinion in regard to the law, that it is i ot only the 
right but the obligation of the legislative branch of the Government 
to take care of a boundary stream which is important for purposes of 
defense. Suppose certain companies have received from the consti- 
tuted authority of the State the right to divert water from the Niagara 
River. Congress takes no action until the plants are constructed for 
that diversion. What limitations, if any, are imposed upon the power 
of Congress by its omission to act until the diversions are already an 
accomplished fact? 

Mr. Stevens. 1 suppose in any such case there are two limitations 
which might be considered — first, legal limitations; and second, what 
I might call a moral limitation. So far as the moral limitation is con- 
cerned in this particular case, that, of course, is a matter for your 
consideration. Assuming that there is no legal limitation, that would 
involve several considerations — first, whether the diversion is of suf- 
ficient consequence as it now exists to interfere with it, although 3'ou 
may have the legal right to do so, and whether it is policy to do that, 
although that is a mixed question of fact and a large number of con- 
siderations would have to be gone over to determine that question, and 
of course with that I have nothine- to do. 



230 ' PRESERVATION OF NIAGARA FALLS. 

Turning to the other side, as to whether there is any legal limitation, 
that is to sa}", that Congress had the right to prohibit absolutely any 
and all diversion, and has .not done so, and has stood by and allowed 
men to invest their money, will they still have the right to destroy the 
value of that investment by prohibiting the exercise of it, 1 would say, 
unquestionably yes, the right would still continue. Of course we are 
all familiar with the principle in equity that a man, a private indi- 
vidual, ma}' stand by and see something done, and under such circum- 
stances that he will be stopped from claiming that the erection or the 
structure is unlawful. That is, the courts simply proceed upon this 
ground: 

By your inequitable conduct in keeping silent this has been done, and we will not 
assist now in remedying the wrong. 

I apprehend that that principle can not apply to the operations of a 
great government. The mere failure on the part of one Congress to 
properly protect the rights of the Government can not be urged as a 
reason wh}^ the next Congress may not do it. We may suppose an 
extreme case here again. Suppose that Congress had stood by and 
allowed a great natural barrier like the Niagara River to be entirel}^ 
di\'erted. Would it be beyond its powers, in the contemplation of a 
war with Great Britain, to order that that stream should be restored 
to its original channel; and would anv power estop that? I apprehend 
not. And there is no power in the courts to prevent it. Congress 
does not apply to the courts to help it out. It uses its own powers. 
Congress asks no aid from an3'bod3% but goes about it itself. 

The Chairman. That is, there is a paramount duty to provide ? 

Mr. Stevens. Yes, sir; in all these cases involving a right where 
there is a mixed right — the right of a private individual, the right of 
the State, and the right of the General Government — I think you will 
find in the United States Supreme Court an expression that the right 
of the General Government is always paramount, and all of the other 
rights are to be exercised in subordination to it; and simply because a 
private individual or the State is first in time, that gives it no additional 
right. Whatever it does it does subject to the right and the power of 
the General Government, to wipe away the improvement if the public 
good demands it. 

Mr. Bede. That would take away our liabilit}^ then, to the property 
owner. 

Mr. Stevens. What is that? 

Mr. Bede. I say there would be no liability, then, on the part of 
the Federal Government to these corporations? 

Mr. Stevens. I do not think there is. I can not see w4iy there is. 
I have considered it somewhat. It would be quite a long argument 
and complex. I do not think there is the slightest liability. 1 think 
that any man who makes an etiort to divert the waters of a stream 
which is the boundary of the National Government does so at his peril. 

Mr. Bishop. If you have any authorities on that, I would like to see 
the authorities. That is fundamental, right there. 

Mr. Stevens. I have none at hand, and I am frank to say that I 
have no particular decision in view. I have in mind a great many gen- 
eral expressions and the theory upon which I think a large number of 
the cases have proceeded in regard to that matter. The general lan- 
guage that I remember seeing in a variety of the decisions is that the 



PEESERVATION OF NIAGARA FALLS. 281 

rights of the General Government are paramount. That means some- 
thing. If it means " paramount," it means that the fact that they have 
simply failed to exercise them until after some individual has done cer- 
tain things would not divest the Government of that right. The right 
would still be in the Government, because othervs^ise it could not have 
been a paramount right. 

Mr. Bishop. It is very likelj^ that that argument will be made before 
the House, that the Government would be taking away private rights, 
provided we prevent the taking out by these enterprises of some of 
the water which they have not yet taken. 

Mr. Stevens. I think if that argument is made 3^ou will find it 
dividing up into a legal right and a moral right, too. They might 
insist that it is an injustice; that a great government should not be 
guilty of such an injustice. That may be true in regard to Niagara or 
in regard to anywhere else, that the Government should not do that, 
whether it has a legal right to do so or not. The question proposed 
to me was simply whether the Government had the legal right to do 
so. I myself, if 1 were a Member of this House, would certainly pro- 
ceed very slowly in depriving people of their money who have invested 
it in good faith. But that was not the question that was asked me. 
That question was whether it could be done legally. 

The Chairman. Of course, as you say, the moral question is one 
for the Members of Congress to consider, although the committee is 
glad to receive any suggestion on that subject. You spoke of prepar- 
ing a brief and filing it. We should be very glad to have you file 
that brief. We shall, probably withhold any decision upon this bill 
until after the report of the international waterways commission, 
which it is expected they will agree upon next Thursday at Buffalo. 
Certainl}^ until that time there will be no haste about the filing of any 
brief, and we would be very glad to have it. 

Mr. Stevens. I will endeavor to file something, which will not and 
can not be by wa}" of citation of authorities very much, because, as is 
very properly suggested in the remarks of the Attorney-General, 
which I have read, the question is of the greatest and Avidest impor- 
tance in the line on which I have suggested it. It is also a new ques- 
tion in the sense that it has not been raised before. The diversion of 
rivers is a new proposition; the diversion of lakes is a new proposi- 
tion; and as commerce grows and the remarkable development of 
electricitj^ grows, those questions should be of exceeding importance. 
And if I might be pardoned for suggesting as to the policy of the 
Government, I think that the bill restricting the fui'ther diversion of 
the waters for three vears, or some other length of time, is very 
important, especially as an injunction pendente lite is important while 
litigation is going on, to preserve the status quo, and to prevent a 
large number of these questions which are troubling the committee, 
and which would trouble anybody, as to the vesting of rights. 

The Chairman. In the same direction as the question I asked a few 
minutes ago let me ask 3 ou this: Would you place the paramount 
authority of Congress in providing for national defense upon a differ- 
ent ground from its control over navigable waters 'i You are familiar 
with the case of Gilman v. Philadelphia, and in some other cases it has 
been held that where an obstruction to navigation was authorized by a 
State before Congress took the jurisdiction, nevertheless the obstruc- 
tion must remain. The case of Gilman v. Philadelphia was a bridge 



232 PRESERVATION OF NIAGARA FALLS. 

case, the case of a bridge across the Schuylkill River, authorized by 
the State of Pennsylvania, which was evidently an obstruction to navi- 
gation. The case was taken to the Supreme Court and the court held 
that Congress not having acted the structure must remain. That is 
my recollection of it. 

Now, there are other cases in which the principle is laid down that 
an obstruction authorized by a State before Congress acts, such as an 
obstruction in a navigable stream, can not be interferred with by the 
General Government. Would or would not you place this jurisdiction 
of Congress to provide for the national defense on a different ground? 

Mv. Stevens. That, of course, is a matter of individual judgment, 
in the laying down of any principle which has never been laid down 
by an}" court of jurisdiction; and we have great room for individual 
opinion. The private opinions of John Marshall, I believe, have 
shaped the entire history of this country. 

For myself, 1 could answer that very shortl}'^ by saying that if we 
have such a principle here as I claim it to be I should keep it just as 
broad and as wide as possible, so as to afford full scope for the powders 
of the General Government, not only in cases which we know of, but 
in cases which may arise in the future, a hundred j^ears hence, which 
we can not possibly conceive of at the present time. The question 1 
have urged here, as you will see by live minutes' reflection, is of 
exceeding breadth in governing the country in the future, not only for 
the Niagara frontier, but for other places. If we attempt at this time 
to limit it and narrow it down, we may be depriving this Government 
of a weapon that it may need sadly in future times, and hence I would 
keep it as wide as I could, if it were for me to act, as a measure of 
public polic3\ 

I think that it is important for this country to keep its powers as 
broad as possible, and that is the tendency of everything at the present 
time that the powers of the General Government should be enlarged 
and not restricted. 

The Chairman. I believe that is all, unless there are some other 
questions. We are very glad to have heard from j^ou. The brief of 
which you- speak can be sent or tiled here. 

Mr. Stevens. 1 thank you, gentlemen, for your consideration. 

(Adjourned.) 

Committee on Rivers and Harbors, 

House of Representatives, 

Tueadmj, May 8, 1906. 

The committee met at 11 o'clock a. m., Hon. Theodore E. Burton 
in the chair. 

The Chairman. First of all, I think it desirable that this report of 
the International Waterways Commission should be read. 

The clerk, Mr. Cassidy, read the report of the International Water- 
ways Commission, which is contained in the message from the Presi- 
dent dated May 7, 1906, printed in Senate Document No. 434, Fifty- 
ninth Congress, first session. 

The Chairman. This is the joint report of the International Water- 
waj'^s Commission. It is concurred in both by the members of the 
American section, that is, the members from the United States, and 
by the three members appointed by Canada. 

We have Colonel Ernst here this morning. 



PRESERVATION OF NIAGARA FALLS. 233 

STATEMENT OF COL. 0. H. ERNST, CORPS OF ENGINEERS, U. S. 

ARMY. 

The Chairman. There are several points about which the commit- 
tee are anxious to hear from Colonel Ernst. The first point which sug- 
gests itself is the inequality of quantity to be diverted on the two sides as 
recommended by this report, 36,000 cubic feet per second on the Cana- 
dian side, and 18,500 cubic feet per second on the side of the United 
States, with an allowance of 10,000 cubic feet per second for the Chi- 
cago drainage canal. Those are the figures, I believe. 

Colonel Ernst. Yes, sir. 

The Chairman. How are those figures arrived at, and what was the 
principle employed ? 

Colonel Ernst. The theory was that we want to stop the diversion 
where it is, I mean practically where it is, to allow these works which 
have invested so many millions of dollars, so that the stopping of 
them now would practically destroy their entire enterprises, with very 
little diflerence in damage now from what it would be if they were 
completed — to stop those where they are. And the apparent advan- 
tage given to Canada is more apparent than real; a large part of that 
power is transmitted to the United States; so that so far as the benefit 
to the community is concerned, the benefit from cheap power, we get 
it from the Canadian side more than they do. They reserve the right 
to limit the exportation of power to one-half their product, but it is a 
long way to travel before thej^ will have to exercise that right. 

The Chairman. In that connection, what is your opinion about the 
probable demand for power in Canada? 

Colonel Ernst. Well, I think tliere will be a demand in the future; 
but there is not the demand now that there is on the American side; 
nothing like it. 

The Chairman. Is there existing demand in Canada for the power 
that would be created by the proposed diversion on the Canadian side? 

Colonel Ernst. No, sir. _, 

The Chairman. What fraction of it, would 3^ou think? 

Colonel Ernst. I could not tell you that; it is a very small fraction. 

The Chairman. Was attention given by the members of the Com- 
mission to proposed regulations forbidding or limiting the importation 
of power created in Canada? 

Colonel Ernst. At our last meeting your bill, this bill which is now 
before the committee, was presented and that question was raised. 
Yes, sir; and they seemed to make no objection to the prohibition of 
the exportation of power to the United States. 

Mr. Lawrence. Who made no objection. Colonel? 

Colonel Ernst. The Canadian members of the Commission. 

Mr. Lawrence. Made no objection to the absolute prohibition? 

Colonel Ernst. Yes, sir; that prohibition in the bill. 

The Chairman. One very important question which the committee 
has considered is the amount of water which can be withdrawn above 
the Falls without impairment of the scenic beauty. What do you say 
on that subject. Colonel? 

Colonel Ernst. I can not say any more than was said in that report, 
Mr. Chairman. To divert the quantity of water which we propose 
there we think, undoubtedly, is going to have an injurious effect; I 
mean, the American members think so. We can not tell; it is a dan- 



234 PEESERVATION OF NIAGARA FALLS. 

gerous experiment; that is to say, it may not have such an injurious 
effect as to destroy the grandeur of the cataract; it may still remain 
one of the wonders of the world. That is the ground we take — that 
it has an injurious effect, but not necessarily a destructive effect. 

The Chairman. This amount you propose here with that of the 
Chicago drainage canal would be somewhat less than 30 per cent? 

Colonel Ernst. Yes, sir. 

The Chairman. It would be about 29 per cent? 

Colonel Ernst. I did not figure that up in percentage — 64,000 — and 
it is 222,000 and a fraction; that is the average. 

Mr. Alexander. Sixty-four thousand cubic feet, did you say? 

Colonel Ernst. Sixty-four thousand cubic feet altogether, counting 
the Chicago drainage canal. 

The Chairman. Or, to speak more exactly, 64,500 cubic feet per 
second ? 

Colonel Ernst. Yes, sir. 

The Chairman. I take it, then, your position in the report is that 
some concession must be made to vested interests; it is not a conces- 
sion that this amount can be withdrawn without injury to the Falls? 

Colonel Ernst. That is it exactly. 

The Chairman. Statements have been made that 40 per cent, or even 
50 per cent, of water could be diverted without injury to the scenic 
beauty of the Falls. What do you say in regard to that? 

Colonel Ernst. I do not believe that. 

The Chairman. Do you regard 29 or 30 per cent as dangerous? 

Colonel Ernst. Yes, sir; I think we have gotten the limit, I think we" 
are tiying a dangerous experiment with this limit which we have 
proposed. 

The Chairman. There is one feature with reference to a particular 
company. The Niagara Falls Power Company, the pioneer company 
there, seems to have under its franchise the right to construct a sec- 
ond tunnel and divert an additional 8,600 cubic feet, making 17,200 
cubic feet per second. 

Colonel Ernst. Yes, sir. 

The Chairman. Or 8,600 cubic feet for each tunnel. In your recom- 
mendations, as given on page 12 of the original report by the three 
members from the United States, you recommend that a permit be 
granted only for 8,600 feet, or the amount diverted by one tunnel 

Colonel Ernst. Yes, sir. 

The Chairman. What do 3-ou say in regard to that? 

Colonel Ernst. Our idea about that was, Mr. Chairman, not to con- 
vey the idea at all that they had no property rights in that additional 
franchise, but that they had not expended the great amount of money that 
would be necessary to develop it — the power houses and the machinery, 
which cost great amounts of money. They have not got those in there 
now, and it is a question of damages after all. We endeavored to 
make such recommendation^ in that respect as we would do if we had 
all the bills to pay and the United States Treasury to pay them with. 
Now, I apprehend that there will be a heavy damage claim for this 
suspension, but not nearh' so heavj^ as it would if they were allowed 
to go on and put in the additional millions required for the develop- 
ment of that power. 

I want to correct one or two ideas in regard to some matters of which 
complaint was made in this report by the managers of that company. 



PRESERVATION OF NIAGARA FALLS. 235 

We mentioned that they had invested (that statement is on the bottom 
of page 5) the amounts as stated by the manag-ers, which are over 
$0,000,000, in the power plant and seven or eight million dollars in 
other industries established on its lands at Niagara Falls and depend- 
ent upon it. Those figures were taken from a verbal statement given 
at a public hearing. At that public hearing there was a verbal state- 
ment made and also a written statement. It turns out that we mis- 
apprehended the meaning of the verbal statement. 

The $6,000,000 referred to the same inv^estments that the seven or 
eight million dollars referred to — that is, the other industries estab- 
lished on their lands. I have since become convinced that that amount 
should be $13,000,000 instead of $6,000,000. The point is not very 
important in this connection, because what we were endeavoring to 
emphasize was that the investment was very large — the investments 
were very great — and we wanted you to understand how important 
those interests were. In reference to a majority of these companies, 
we did not give any figures; we simply said "several million dollars." 
So I do not think there is any ground for serious complaint in regard 
to that, but, as I have said, that is a mistake; it ought to be $13,0.00,000 
instead of $6,000,000. 

The Chairman. That is, other industries established on its lands at 
Niagara Falls and dependent upon it should be included in the' invest- 
ment of the Niagara Falls Power Company? 

Colonel Ernst. No; I mean the investment in the power plant; the 
power plant should be $13,000,000 instead of $6,000,000. 

The Chairman. Then the way to correct it would be to change the 
"6" to "13r' 

Colonel Ernst. Yes, sir; that is it. 

Further on, on page 11, to which I wish to call 3^our attention, with 
reference to that same compan}', we say it has constructed works hav- 
ing about one-half that capacity — that is, about one-half the 200,000 
horsepower — but has not begun the construction of the additional 
works, and we believe has no present intention of doing so. That word- 
ing was not intended to convej^ the idea that they had no intention of 
ever doing so, that they had no intention of doing it at present. 

The Chairman. Just where is that? 

(Colonel Ernst. That is about the middle of page 11 in paragraph 30; 
the sixth line of paragraph 30. I have no doubt that they have had 
in mind that at some time they would develop that power, but we 
intended to convey the impression that we do not believe they intend 
to develop it at present. 

Mr. Davidson. In that connection, referring to that intake canal of 
theirs, is there anything about that that could have been constructed 
for a less sum ? 

Colonel Ernst. They might have made it a little • less wide and a 
little less deep, but there is just that excavation. 

Mr. Davidson. It is only a short entrance there? 

Colonel Ernst. That is all. The dimensions of that intake canal do 
not, I think, play any particular part in the development of that horse- 
power, but still it is something. They would have a claim of damages, 
and yoii ought to understand that. 

Mr. Lawrence. You say you believe that if we permit the diver- 
sion of one-third of the Niagara River it will have an injurious effect 
on the Falls as a scenic spectacle. Of course that is an important 



236 PRESERVATION OF NIAGARA FALLS. 

matter with us, and I wish you would ^ive your reasons a little more 
in detail for coming- to that conclusion. For instance, supposing* one- 
third of Niagara River is diverted, how much do you think that would 
lower the height of the water as it goes over the crest of the American 
Falls, and how much do j^ou think it would lower the water on the crest 
of the Horseshoe Fall ? 

Colonel Ernst. I would not g'ive an}^ opinion as to the amount on 
either fall? 

Mr. Lawrence. Then, will you not tell us why you think that a 
diversion of one-third of the water would injure the scenic grandeur 
of the Falls? 

Colonel Ernst. It seems to me self-evident that if you take one- 
third or even one-fourth of that water you would certainl}^ diminish 
the volume of the falls; but when you come to feet and inches I can 
not tell you, and no other man can tell 3^ou, how much the deduction 
of a certain amount of water will lower that crest; because there is no 
hydraulic formula to work it out by. The crest is irregular; it is not 
straight; it is not horizontal, and no man knows exacth^ how much 
water is going over there now. We put it at 12^ per cent. 

The Chairman. That is on the American side? 

Colonel Ernst. On the Amei-ican side. The engineer of one com- 
pany on the Canadian side says that it is only 10 per cent, and another 
hydraulic engineer puts it at 15 per cent. It is about 10 to 12^ to 15 
per cent, and that is all any man can tell you as to the quantity of 
water going over there. The shape of that crest is absolutely unknown. 
Engineers have testified here that it has an average depth of 1 feet. 
They don't know; there is no way to find out. Some parts of it I 
know are not over a foot deep, because I saw a log lodged on it the 
other day — what we call a snag on the western rivers, a dead tree with 
the branches and roots removed. 

The Chairman. Mention has been made of the so-called Francis 
formula. What is 3'our opinion as to whether that is applicable to 
Niagara Falls and whether by the use of that formula you can judge 
of the depth over the falls? 

Colonel Ernst. Mr. Chairman, it is absolutel}' inapplicable. The 
Francis formula was deduced from experiments on artificial weirs; it 
is a formula for computing the flow out of a reservoir over a weir. 
The original formula was for a weir with what is called a knife edge — 
a sharp edge. It was found that different weirs gave very discordant 
results, and subsequently investigators have changed the formula to 
tit it to all shapes of weirs, or at least a great variet}^ of shapes, and 
there is a difference whether the water approaches the weir at a con- 
siderable velocity or whether it is quietly flowing out of the reservoir. 

The condition to which that formula must be applied must be some- 
thing like those under which it was framed. It involved some of 
these conditions: The weir must be straight. There is a map that I 
have had hung up there. You can see for yourself it is nowhere 
near straight. The weir must be horizontal. You can see that it is 
nowhere near horizontal there, it has nothing approaching the hori- 
zontal condition. And there must be a reservoir inside. There is no 
reservoir anywhere nearer than Lake Erie, 20 miles away. And j^ou 
must know the velocity of the approach. But you do not know it. It 
has been measured differently up there. One engineer reports it 8 feet 
a second. He measured it near the shore. Another man reports it 20 



PKESERVATION OF NIAGARA FALLS. 237 

feet a second. That is what we call the velocity head; that has to be 
used in this formula — the velocit3\ And those two results — 8 feet and 
20 feet— will give you a difference in depth of 50 per cent. So, as I 
told one young gentleman up there, the Francis formula is about as 
applicable to Niagara Falls as it is to the Pennsylvania Railroad, and 
no more. 

The Chairman. IS there any way of figuring upon the lowering of 
the falls that would be caused b}' the diversion of one-third of the 
water? That is, suppose you take a certain depth for the flow over 
the falls, and a fraction of the water were diverted, could you tell how 
much the fall would be lowered? 

Colonel Ernst. Yes; if you had conditions anything like these, 
under which the formula was framed, you could do that; that is, if 
you had a reservoir and you knew the shape of that crest— knew the 
form of it — you could. 

Mr. Lawrence. That was not exactly the chairman's question. 

The Chairman. Well, as applicable to this case — that is what you 
really want to know— can you tell how much the depth of the flow 
of water over the falls would be diminished by the withdrawal of any 
percentage — one-third, for instance? 

Colonel Ernst. No; you can not tell. 

The Chairman. What do you say of the possible effect of the diver- 
sion of water from Niagara River, at the points where it is now being 
diverted, upon the level of Lake Erie? 

Colonel Ernst. I do not think it will affect the level of Lake Erie; 
they maintain their heads. 

The Chairman. And upon the level of Niagara River above the 
point of diversion? 

Colonel Ernst. No, sir; I do not think it will affect it. 

The Chairman. I have an opinion here from Professor Williams, of 
the Michigan University. Do vou know him at all? 

Colonel Ernst. Gardner S. Williams? 

The Chairman (continuing). In which he expresses the opinion that 
it will have an effect on the level of Lake Erie. 

Colonel Ernst. It can not affect the level of Lake Erie unless you 
take out more water, and that is not what they propose to do; they 
simply take the same quantity of water out of Lake Erie. 

The Chairman. This is what he states. This is Gardner S. Williams. 

Colonel Ernst. Yes, I know him. 

The Chairman. This is what he says: 

With such information as is now in my possession I estimate that should a diver- 
sion of 60,000 cul)ic feet per second be made by the power companies in the vicinity 
of Niagara Falls, tlien the mean level of Lake Erie would be lowered at least between 
six-tenths of a foot and 1 foot. It is quite possible that the effect might be even 
greater than this if no provision were made to retard the discharge over the Falls at 
the time of these diversions. 

Colonel Ernst. I do not see how he reaches any result of that kind. 

Mr. Bede. By that it would indicate that this does not change the 
condition of the Falls at all. 

The Chairman. No; it is a question whether, if more water is drawn 
out, whether the ffow over the Falls is not continued as it was and 
merely an extra amount taken out from Lake Erie. That would seem 
to be his theory, or perhaps that the diversion is divided between the 
two. 

p N F — 06 16 



238 PRESERVATION OF NIAGARA FALLS. 

Mr. LoKiMER. Would it increase the velocity of the water going 
over if it was diverted above the Falls? 

Colonel Ernst. No, sir; it would not. 

Mr. LoRiMER. That is my opinion of it too, and I do not see how it 
could lower the level of Lake Erie unless more water came out. 

Mr. Jones. Would that increase the velocity^ of the water flowing 
out of Lake Erie ? 

Colonel Ernst. Not unless you decrease the resistance, and you do 
not do that. 

Mr. LoRiMER. Would not the tendency be to lessen the velocity ? 

Colonel Ernst. I think the tendency might be that way. It is to 
the interest of the power companies to maintain their head; they have 
got to do that, and sometimes they put out diversion dikes in order 
to draw more water in there. 

Mr. Jones. And that checks 

Colonel Ernst. That changes the amount that goes over the Falls, 
but not the ajnount from Lake Erie. 

Mr. Jones. Does not it even have a tendency to throw it back to 
Lake Erie? 

Colonel Ernst. They try to even the thing up; they have to main- 
taiia their heads, for their machinerj\ 

Mr. Alexander. How would it be possible to get more water to 
run out of Lake Erie than is running out now? Supposing you 
wanted to discharge more water out of I^ake Erie than is being now 
discharged, how, as an engineer, would you go about to do it? 

Colonel Ernst. You would have to reduce the resistance — that is, 
enlarge the channel. 

Mr. Alexander. You would have to cut down the channel out of 
Lake Erie into Niagara, would you not? 

Colonel Ernst. Yes; you would have to do that. 

Mr. Alexander. Or increase the flow at the crest of the Falls, mak- 
ing it steeper? 

Colonel Ernst. Yes; you have to enlarge it somewhere. It is con- 
ceivable that you might enlarge the channel so much as to increase the 
slope, and that would increase velocity; but anywhere along that river, 
if you enlarged the channel and decreased the resistance, you would 
tend to lower Lake Erie, but in no other way. 

Mr. Alexander. But you would have to increase the slope, so that 
there would be more chance for more water to come out of Lake Erie? 

Colonel Ernst. Yes, sir. 

Mr. Davidson. The crest of the Falls does not act as a dam at all. 

Colonel Ernst. No; it is only one of the resistances. 

Mr. Davidson. It is ver}^ much lower than the lower end of Lake 
Erie? 

Colonel Ernst. Yes; it is. 

Mr. Davidson. So it is simply a continuous slope downward from 
the outlet of Lake Erie until you reach the Falls? 

Colonel Ernst. Yes, sir. 

Mr. Sparkman. And if it were possible to lower the Falls would not 
that draw out more water? 

Colonel Ernst. Yes; to lower that channel anywhere that would 
tend that way, but of course that is a big thing. 

Mr. Lawrence. Why do you recommend that so much more water 



PRESERVATION OF NIAGARA FALLS. 239 

1)6 diverted on the Canadian side than shall be diverted on the Ameri- 
can side? » 

Colonel Ernst. Because they are coming in there with millions of 
dollars now to divert this quantity of water mentioned. 

Mr. Lawrence. Who is coming in ? 

Colonel Ernst. On the Canadian side; those three Canadian com- 
panies are embarking on a great enterprise, each one of them. Their 
work is not tinished, but they have gone so far that practically to stop 
them now you would destroy their whole investment, and the question 
of damages — that is also to be considered, and that was in our minds 
all the time — the question of damages would be practically no greater 
if they had finished their work than it would be now. It gives them 
more water than us, but we get the use of it. 

Mr. Lawrence. You reconmiend that they be permitted to divert 
nearly twice as much as the Americans? 

Colonel Ernst. Nearly twice as much for power purposes, and there 
is also the 10,000 cubic feet per second for the Chicago drainage canal. 

Mr. Law^rence. You also favor that provision in the bill that we 
prohibit the importation of power into the United States 

Colonel Ernst, No. 

Mr. Lawrence. I thought you said you did. 

Colonel Ernst. I said the Canadian members made no objection to it. 

Mr. Lawrence. What is your opinion about that? 

Colonel Ernst. It seems to me 3'ou are raising a big damage bill 
there, too. These transmission companies have embarked in a big 
enterprise — have raised a lot of money. We did not mention them 
in our report because they do not take water, but from the financial, 
side they are important; they have made contracts for the transmission 
of this power, and if 3^ou stop them you destroy them, too. I think 
that in that direction I would not go quite so far as to prohibit it 
absolutely, if you wish to limit it; I would limit it to what the Cana- 
dians have done. They have retained the right to require one-half of 
that power generated to be furnished to Canada. 

Mr. Alexander. Well, as an American here, would 3^ou recommend 
that. Colonel Ernst, to limit the importation of even 

Colonel Ernst. I do not say I would recommend it. 

Mr. Davidson. What objection can there be to permitting as much 
power as they can produce to come into this country, providing always 
that the amount of power used is limited 

Colonel Alexander. To 36,000 cubic feet? 

Mr. Davidson. Yes; to 36,000 cubic feet. What objection is there 
to bringing that power into this country? 

Colonel Ernst. 1 would admit it, personally. 

The Chairman. What assurance have you "that they will not go on 
with further construction on the Canadian side? 

. Colonel Ernst. Of course we have no very positive assurance. The 
Canadian members of that commission have now joined us in these 
recommendations, this report that has reached you this morning, and 
this report shows that they follow us in these figures. 

The Chairman. Is it not a fa^t, however, that there are several out- 
standing franchises on the Canadian side that could be utilized for the 
diversion of more water? 



240 PRESERVATION OF NIAGARA FALLS. 

Colonel Ernst. Yes, there are; but they have not perfected their 
,rights. They are in the same situation as these two companies on our 
side that have franchises, but have not perfected their rights. 

The Chairman. What is your own opinion, as derived from a sur- 
vey of the situation, as to whether any more development will occur 
on the Canadian side? 

Colonel Ernst. 1 am inclined to think that there will not be any; 
that they mean to join us cordially and frankly in this limitation; I 
think that is what they intend. Whether, wdien they come to looking 
into the rights of these companies which are not fully developed, they 
will hold to that view, of course, 1 do not know what the result may 
be; but I think that is their present intention. 

The Chairman. 1 take it you put your recommendation in regard 
to the relative amount allowed the two sides on the same footing as 
to the total amounts, namel}^, vested interests. 

Colonel Ernst. Yes. That is what fixes those figures. 

The Chairman. And you regard the vested interests as greater on 
the Canadian side than on the side of the United States? 

Colonel Ernst. Yes, sir; so far as power is concerned. 

Mr. Sparkman. You say that will be taken care of by paying the 
parties ? 

Colonel Ernst. That is a legal question I am not so sure about, 
but 1 kept it in my mind; I felt that there would be a big damage bill. 

Mr. Sparkman. Is it proposed that the Canadian people take care 
of the damages on that side i 

Colonel Ernst. That has not come up in terms, it was latent, we 
have not discussed whether damages should be paid or not. 

Mr. Sparkman. Some treaty arrangement, I suppose. 

Colonel Ernst. Yes; all the commission recommended or agreed to 
was that our Government should restrict the diversion on our side to 
these figures, and that the Canadian government should restrict their 
diversion on that side to those figures, and how they should manage 
that increase we could not decide. We recommended in the report 
that it should be either by treaty or legislation. 

Mr. Alexander. Is it your opinion, as an engineer, that the diver- 
sion of 10,000 cubic feet per second for the drainage canal of Chicago 
will divert an equal amount from Niagara Falls — that that amount is 
diverted from the Niagara River? 

Colonel Ernst: Certainly, yes sir. Some evidence was given here 
that that water would be evaporated before it got to Niagara. That 
seems to me a very foolish suggestion. The amount of evaporation 
depends entirely on the water surface shown, and if any particular 
body of water in Lake Michigan does not come down through the 
course, and in part spread itself out and be evaporated, then some 
other water to an e<|uivalent amount will have to be evaporated; it is 
simply the. area exposed. If you take water out of Lake Michigan 
enough to reduce the area then you will reduce the amount of evap- 
oration, but that is not a practical question. The estimate that 10,000 
cubic feet a second divei'ted at Chicago will lower the level of Lake 
Michigan six inches — that effect on tjje evaporation of the surface is 
insignificant, the reduction of the area is insignificant. 

Mr. Sparkman. How much water goes out through the Erie Canal 
there ? 



PRESERVATIOISJ" OF NIAGARA FALLS. 241 

Colonel Ernst. Three hundred and thirty-three cubic feet a second. 
We allow them 400 in this. 

The Chairman. Is that likely to be increased when the barge canal 
is opened? 

Colonel Ernst. 1 do not know; yes, sir; 1 think it would be, prob- 
Sib\y. 

The Chairman. But not greatly increased ? 

Colonel Ernst. Not greatly; no. Nothing in the thousands. I have 
heard the number 1,200 or 1,500 mentioned, but I do not think there is 
an}^ definite scheme for that. I think they would probably want to 
increase it. 

The Chairman. Now, in regard to the proposed dredging there at 
Grass Island, on the American side, two questions about that: Would 
dredging there, in your opinion, materially increase the flow over the 
American Falls? Second, do you find an}^ objection to such dredging 
from the Canadian members? 

Colonel Ernst. You could dredge enough there undoubtedly to 
increase the flow over the American Falls materially. That could be 
done; how much dredging I am not prepared to say. I do not think 
any man can compute how much it would cost to divert any given 
quantity of water through the American Falls. The Canadians would 
object to it. That suggestion was made at our last session; they pro- 
tested most vigorously against anything of that kind being enter- 
tained. And it should be noted that almost everyone who appeared 
for Niagara Falls took it for granted that something of that kind 
should be done in order to preserve the American Falls. 

Mr. Davidson. Was that plan proposed here by some one? 

The Chairman. Yes, sir; and the obstruction is a good deal like a 
wing dam. 

Ivlr. Davidson. And you say the Canadian commissioners strenu- 
ously protested against an3'thing like that? 

Colonel Ernst. Yes, sir; they did. 

Colonel Alexander. Is it not aomewhat strange that the American 
reservation commissioners did not long ago put a channel through that 
wing dam and bring down more water over the American Falls, in 
order to beautify it i 

Colonel Ernst. Well, it is an international question. 

[Informal discussion followed.] 

Mr. Alexander. I think anyone going out there, as Judge Burton 
and I did, and looking at it, a perfect wing dam runs out within, they 
said— what was it, within a half a mile of the Navy Island, I think; 
what was the distance? 

The Chairman. Below; perhaps a half a mile or a little more. 

Mr. Alexander. So it throws the American water that comes down 
between the Grand Island and the American shore over on the Cana- 
dian shore, and it throws it over with violence. 

Mr. Davidsojj. What do you mean by a wing dam? 

The Chairman. A natural reef. 

Mr. Alexander. A natural reef; yes. 

Mr. Davidson. And what is the effect of the wing dam? 

Colonel Alexander. One of the engineers suggested that it throws 
that current across with such velocity on the Canadian shore that it 
reflects and is the cause of cutting down the apex of the Horseshoe, 



242 PRESERVATION OF NIAGARA FALLS. 

which Mr. Wilson testified up there was really the cause for the 
destruction of the Falls up to date. It was cutting-, he said, 5 feet a 
year, and he said it had destro3'ed the Falls — had been the instrument 
of destroying the Falls, so far as it had been destroyed. 

Mr. Humphreys. Would not the Canadian government have the 
same right to object to our removing that wing dam that we have to 
object to withdrawing any considerable amount of water from the 
river, both objections being predicated on the right of each govern- 
ment to insist on the boundary stream being left as it was originally? 

Mr. Alexander. That undoubtedly would do it now, but if it had 
been done eight or ten years ago not a word would have been said. 
Why, this Rivers and Harbors Committee has before it a plan which 
includes a cutting away of a part of that wing dam for navigation pur- 
poses — down to Port Day, I believe it is. 

The Chairman. 1 have not examined that plan, but there is a plan 
for improvement down to Fort Day, which is below this so-called wing- 
dam or reef. The question arises whether dredging could not be done 
there. It seems to me it is an international question. That is a bound- 
ary which is fixed with reference to existing conditions, and if there is 
a right in the two nations on the respective sides to a division of the 
waters, that boundary' line would be supposed to have been fixed with 
reference to the direction in which the waters naturall}^ flow and the 
quantity. 

Mr. Jones. That might have a tendency to destroy the scenic 
grandeur — the grandeur there is on the Canadian side, where the 
immense falls are, the tremendous fall of water— and if we divert it 
over on our side it would make two small falls. Of course they would 
be large falls, but it would take away the grandeur, 

Mr. Alexander, It would not be noticeable from the Canadian side, 
but it would be noticeable on the American Falls, 

Mr, Jones. Yes; it would be noticeable on the other side if vou 
would divert a whole lot of that water; as much as the power com- 
panies divert, for instance, 

Mr, Sparkman, Does the treaty between this country and Great 
Britain undertake to settle the question as to the amount of water on 
each side 'i 

The Chairman, No, The statement was made that the aim was to 
divide the waters equally. It is possible that such was the purpose of 
the Commissioners, but there is no indication of it in the treaty. I 
"will read the provision of the treaty. This was fixed by the Commis- 
sioners in 1822. After describing the line in Lake Ontario: 

Thence westerly along the middle of said lake to a point opposite the Niagara 
River; thence to and up the middle of said river to the Great Falls; thence up the 
Falls to the point of the Horseshoe, keeping to the west of Iris or Goat Island and of 
the group of small islands at its head, and following the bends of the river so as to 
enter the strait between Navy and Grand islands. 

There are some maps that were approved by the Commissioners-, of 
which we have a copy here. • 

Colonel Ernst, It has been transferred to that map, that boundary, 
that was taken from the treaty of Ghent map, filed in the State 
Department. 

The Chairman. Here is the international boundary [indicating on 
map]. An examination of the treat}^ does not disclose that it was 



PRESERVATION OF NIAGARA FALLS, 243 

intended to divide the waters equally, although that may have been in 
the minds of the commissioners. 

Mr. Alexander. I will suggest this, Mr. Chairman: That on the 
west side of Grand Island the Canadian waters extend within 200 feet 
of the Grand Island shore. 

The Chairman. Up here [indicating on map] ? 

Mr. Alexander. Yes, within 200 feet; so that would indicate that 
they were trying to get just about one-half of the waters. The}" give 
all the channel, of course, on the east side of Grand Island to the 
Americans. 

The Chairman. It might be beneficial to the committee to point to 
the place where that reef is. It is along here [indicating on map], 
above Grass Island. The water has a depth of 1 to 3 feet. Grass Island 
is right there [indicating]. You will note along there there is 19, 21, 
18, 16, 17, li, and then it falls off to 9. Here is a place where it is 2, 3, 
and 4; right here it is 6, T, 9, 10, etc. It is not exactly a straight reef, 
although I must say that to one on the shore it looks as if it was a straight 
reef across there [indicating on map]. It seems as if it were a sort of a 
fall, but the water is held back there, 3^ou can see. One further point 
the committee would like to hear from you about. There are certain 
companies planning to divert water below the Falls. Has the commis- 
sion given any attention to the subject of the effect of such diversion 
upon the rapids below the Falls {^ 

Colonel Ernst. No, sir; not specially. 

The Chairman. Have you any suggestion to offer about that, whether 
the diversion of 20,000 cubic feet per second would impair the beauty 
of the Whirlpool Rapids there or other rapids below that? 

Colonel Ernst. I do not think it would. 

The Chairman. Is it not true, however, that some limit should be 
placed upon that? 

Colonel Ernst. Yes, sir; I think so. 

The Chairman. Could as much and more be withdrawn proportion- 
ately from the rapids without endangering their grandeur than from 
the Falls? 

Colonel Ernst. I think you could probably withdraw more there. 

Mr. Lorimer. Colonel, the engineers of the drainage board in Chi- 
cago state that ultimately they will require 14,000 cubic feet a second 
for the sewerage, and your commission recommends that 10,000 cubic 
feet be used there ultimately. When the time arrives that 14,000 
cubic feet are absolutely necessary how would your commission pro- 
pose to take care of it? 

Colonel Ernst. I think that it would be a very long time, some 
generations probably and perhaps never, before 14,000 cubic feet will 
be required for legitimate sanitarv purposes. Nobody questions the 
propriety of giving ('hicago all the water she requires to preserve life 
and health, but, as 3'ou know, there are other schemes on foot there; 
there are schemes for water power and for new transportation lines. 
Now, 10,000 cubic feet a second amounts to 6,462,000,000 gallons per 
da}^, or about 15 times the quantity of water that the city is now pump- 
ing for all purposes. That would be about 1,300 gallons per day for 
each person with a population of .5,000,000. That will take oft' a good 
deal of sewerage. 

Mr. Lorimer. You suggest that they are diverting water for water 
power. Is it a fact that the}' are utilizing the water that they have 



244 PRESERVATION OF NIAGARA FALLS. 

for power rather than allowing it to go over the bear-trap dam, or are 
they realh' diverting water for power? 

Colonel Ernst. No; it is simplj^ an incidental use. 

Mr. LoRiMER. Yes; they have the water, und they utilize it, but 
whether they utilize it or not, under the statute that authorizes this 
water way the}^ are compelled — if the Federal Government will per- 
mit them- to use a certain amount of water; is not that a fact? 

Colonel Ernst. Yes; that is what the State law requires. 

Mr. LoRiMER. You say it may be a century or may be two centuries 
before Chicago will require 14.000 cubic feet per second; but you 
have seen Chicago grow and so have I. I do not think it will be two 
centuries before Chicago has 5,000,000 population. 

Colonel Ernst. No; I do not either. 

Mr. Lorimer. And the time will come, in my opinion, when the 
maximum amount of water will be required. How do you propose to 
take care of it:! 

Colonel Ernst. This treaty is only for twenty -five years, and I do not 
believe Chicago will have 5,000,000 yjopulation in twenty-five years 
from now. 

Mr. Lorimer. Well, it is not a bad thing, Colonel, in establishing 
treaties of this kind, where both governments, or the people of both 
governments, are vitally interested, to say, now, at the outset, that so 
much may be used for water power on the Canadian side and so 
much for water power on the American side, and 4,000 cubic feet per 
second less than the amount required for the Chicago drainage canal; 
does not that establish a precedent that a future commission may 
have some trouble to overcome? 

Colonel Ernst, Well, it was to take some limit; we had to take some 
figures. That seemed to be a very liberal figure for legitimate sani- 
tary purposes, and the possibilit}^ of taking 14,000 cubic feet is some- 
thing that none of us ever heard of until this report came out. 

The Chicago drainage canal was not designed originally to carry 
more than 10,000 cubic feet a second; it has never been allowed to take 
more than 4,166 cubic feet a second, under the permits of the War 
Department. That amount has served the city well so far. Now, 
what the effect ma}' be on Joliet, whether .Joliet would like to have 
a stream of water that is not diluted with 20,000 cubic feet for every 
100,000 inhabitants — I believe that is the State law — is another ques- 
tion; but there are other important interests there besides Chicago 
that have never l)een consulted at all. This 14,000 cubic feet is sprung 
on us without any other interest being consulted. They go ahead in 
Chicago like they own Lake Michigan, and nobody else is to be con- 
sulted. As a matter of fact, the navigation interests of the Great 
Lakes are very important, and they have never been consulted. 

Mr. Lorimer. What do you regard as more important, the preser- 
vation of health or the creation of power? 

Colonel Ernst. The preservation of health, undoubtedly, and I say 
to give Chicago all she wants for that purpose. 

Mr. Lorimer. In reference to your statement that Chicago is n£)t 
now using and could not use the amount of water they may be entitled 
to and must use under the State law, if permitted b}^ the Federal 
Government, is it not a fact that we are spending millions of dollars a 
year to create a channel capable of carrying the 10,000 cubic feet a 
second? 



PRESERVATION OF NIAGARA FALLS. 245 

Colonel Ernst. Yes, sir. 

Mr. LoRiMER. At the rate we are now expending money for that 
purpose it will not be ver}^ long- before we have a canal that will take 
that amount. 

Coloner Ernst. That is true. 

Mr. LoRiMER. So there is not much in the statement that the canal 
is not capable of handling the amount of water that we will ultimately 
take ? 

• Colonel Ernst. The only point about that statement was to show 
the present necessities. 

Mr. Lorimer. Of course if it was only to-day that we had to con- 
sider, there would not be much in any discussion with reference to the 
Chicago drainage canal; it is largelv a question for the future. I have 
seen Chicago grow from 200,000 to 2,000,000 

Colonel Ernst. It is impossible to foretell the growth of Chicago; 
I would not like to undertake that, but I sa}^ that 10,000 cubic feet 
per second will give 1,300 gallons per day for each person with a pop- 
ulation of 5,000,000, and it seems to me that that is enough for sani- 
tation purposes. 

Mr. Meade. I understood that that was partly needed to reverse 
those rivers. 

Mr. Lorimer. One river is already reversed. 

Colonel Ernst. They have one reversed, and they can easily reverse 
the other, and then the question is simply a question of dilution. 

Mr. Davidson. Can you, oflhand, tell me how many cubic feet are 
now being used on the American side and how many on the Canadian 
side? 

Colonel Ernst. The first company on the American side, the Niagara 
Falls ll3^draulic Power and Manufacturing Company, is using 4,000 
cubic feet per second; and the other company, the Niagara Falls Power 
Company, is using 8,000 cubic feet per second. They are using about 
8,000, to be more precise, and one of the tenant companies is using 
about 600 feet; but the concern is taking out 8,600 cubic feet. That is 
on the American side. 

Mr. Davidson. That is 12,600 feet on the American side now being 
used. Now, how about the Canadian side ^ 

The Chairman. And then there is the Erie Canal, but that is prob- 
ably not worth while to consider; it is something less than 400. 

Colonel Ernst. Three hundred and thirty-three, we call that. The 
Canadian Power Company is now using about 2,600 feet per second; 
the Ontario Power Company is using about 2,000 feet. 

The Chairman. What other companies 'i 

Colonel Ernst. The Electric Development Compan}^ are not taking 
any now. Then there is a little concern, the Park Electric Company, 
which is taking about 600 cubic feet per second. 

The Chairman. So the amount now being diverted is about two- 
sevenths of what would be diverted if all these companies that you 
regard as having vested interests were to divert what they are allowed 
to take ? 

Colonel Ernst. I have not figured it out. 

The Chairman. That is about 17,800. 

Colonel Ernst. About 17,800. 

Mr. Davidson. Altogether, with what the drainage canal is now 



24^ PWDHatTATIOy OF SriAflABA FALLS- 

Wftn$[. TtfT fiviyrt^ wfm]A nia\w^ it ifl .800 ncnr fi*rjn<r nA*;d fmtmde the 
Eri^ V> woald :- 

i'^fUfftt-.t hk.>ift» Uo'f iJuhy isniH uifout — ^1 will ^i*#; you titot m a 

T>*^ <AtA%tcnAJ(. OjtjfitJng^ that in. it would be about one-third? 

Mr, lMvr;>*r^^. Y'- >'.^" w, -. t^ v^T 

iJ/Unih\ V.H'Sia. 'I : pat do*rn here a* 1-^j>0. 

Mr. r - '• . ,. *: - *^'/} wbrv',- *' - '*^-* •!-•. 

r«s«rte/i lan ry/f.'. : >-re vji in . 

th*- o: l:j:i:'j.l\-. 

Or j**«rr. H«rre 

i* ' "' 7 

th' ir»ej' nave a r/»' 

d// . . . .. ... - ; that a** mu^rb Ji ..^..^.::. „ ..—::.-. 

iAiS%if¥',('.tmfyMt\fA on the Cana/iian >ide? 

ijAimt-X V.K%^, I do " ' " ' it a ve<4ed ri^it. bot ther hare nr/t 
pot tJ>e frK/r»e V int/> the jj x of (fy>ri--tru/,'tJon tJiat thev have put in 

mi' -. Ofi t f^a/Jy 

ur. 'ion: ti. j»re 

fn^ f. up. ' 

witfjout pretty r»*^r! v a t//tAi )'><«. 

Mr. \jA%y,v.7n:r,. 'Itmi h what 1 want.erJ t/> know 

.Mr. A*.K:x>i."*i>Kit. |j» it n'A a fa/;t tJiat the S'ia^'ath i'ower O^rnpany 
on U-ie Autt-yu'^u ^irhr, takin|( now >-.^/i enbie ifMiy-s m-jvuxA. 'iivert- 
jnj( ^.//Z; MK/re water with a j^ei'^/n^l iunrttil — tliat it. t/.^'^. ha>< ^ow; Mf 
far that for all pr^ ' ' *' vhaj» if*;iftin, and Vj nUfp 

that t»in nel now » '> at d^^al ^ 

O^l'/nel KK5<r, Jt ao .'y/ cArtaSti rijfht* whieh I r;arj 

n'/t h^liumlM: I ^Jo not . are. 'J hey have that rij^ht 

ioder the \ew York franeni*?*;. un^iotiift^lr, to take tJ»at amount of 
wal^^r. 

.Mr. At,KXA%t/y,H. Thev liave their rit^ht of way. 

O^lonel Emfm. Sow, hx^kinjf t/.»ward tJiat. they have rna/le a bijfjrer 
intake than they r^herwi^j wouJ^J r<?/jijire: they have iU'j\ti\r*'A a rij^ht 
r/f wav for a tunneh J don't know whtiihar it would U; tiM'Jul or not: 
it ItftfUtiA pr*dtv ero^^k*'/) t/^ me, hut .>>til) they have ma/Je f h^^; exfxmdi- 
iurnn, Arui tfieir jrenera) plansi have <'jfuU'.ui\>\iiU'A at j^'^me time in 
the future, i\t'i». ii*'ji('.rit\ dev^rlopment: hut thev have not put in the 
Jar^^e tutionui of money r<yjijir</J, 'Jake that HU/t, for in^.tiinee, in the 
>i^^h'd r^^'k, J/>^; or 1^}^; fe<?t. d<:ep, th<y have n^/t done anythinj( t^/ward 
that. 'Iliey have not ^>^/u</ht any ma^;hinery, they have not ex'^vat>'/J 
that tunnef. '\'h<r^, 'at*', tut; ii'-nvy cxfrf'ttdhuu^ that will U; ufJA'/n-vary 
\ffJor*'. they r^an take a/Jvantajre of their rijfhtx, and it ^-A'Auh Ut uw. that 
th'>*<; rii(UiM cJtuSd )h; extinj^ui-.h'r^J now for mueh Ie4j» loi<H than in the 
futitr*'.. aiiMr they have jfone Ahtrmi and <■/ tf(i\>\t',U'A utaity of the/»<j 
iuipro 

Mr. . ' K. (^n you tell ux how much >ia*» U-.en exfx;nd<^J hy 

ihe ^//n.(/a^,< ' on the (^anadian «fideif 

0/lon<-.l K;:*.»<r. .So; J r^n not. 

.Mr. J/Av.iiK'kVK, Have you any id'-a of the amount? 

('/t\'iu'\ Ki;'.-7. -No: I h;jv<-, not. \V«; j/ut. it dov/n at -Mvi-.m.] million 



PRE^KRVATIOX OP XIAGAR.V FALUSi. :}47 

dollars — that i# all: wo mort^ly wisluxl to ovMnov tho idea that the 
intorostc* aiv larjro. Tho inipivssions that wo obt^inovi woiv frvMU a 
personal visit, I'horo aro tho works, anvono can soo thom: thov aiv 
t^ir Advanoovi townn.i ^x^niplotion. 

Mr. LoKiMKK. Is not tho Ontario Powor Comivuw in the ssn^o ix>si- 
tion as tho coiu^vtuy to which Oolonol AloxHiulor has just rx^forrovl? 
Thov havo an intako larovr than novwss^rv for tho amount of ^x^wor 
that thov will vio\ olop with tho maohiuorv that thov havo inst^lKvi. Init 
is not that all? Fhov havo not put in thoir vx>ni\uitji, 1 umloi^t^nd 
thov aiv i^irryinc tho water to their ^vnvorhouso l\v cvMuluitiis auvi thoy 
havo not put thom all inr 

Oolonol F.KNST. N\>: but tiu\v aro aetivoly onjr^jiwi in ov^nstruelivm. 

Mr. Ia^kimkk. Thov havo not put in any nioiv than what is nt\\>s- 
s;\ry for tho auumnt of maohinory that thoy aro now iustaHinj>\ havo 
thoyJ 

CVlonel Kknst. I v^»n not toll you. 

Mr. l.v^KiMKK. That is my impivssion. T wont all thivusih their 
plant last Mv>nday. and tho impression that 1 havo is that thoy havo 
lust init in conduits cnouiih to dovcU^p vH\vXH> hors^^^x^wor. 

t\Monol K.KNsr. Yes; that may Iv sv^. 

Mr. l.OKiMKV^ Now. then, if that is so. thoir intako is the only plavv 
where thoy havo oxjvndiHl an oxvvssivo amount of nuM\ov. ami if that 
1h^ true, to develop the amount of yxnver that their ukachinory w ill now 
develop they would only ivvpiiix^ (>.iHX^ t\vt a stwnd. if we stop tluMV. 
1 am not ahsolutcly ccrtait\ that my idt'^us an^ ^vnwt. 

Mr. Ai KXANPKK. I think you aiv pi"actically ivnvct. Mr. l.vMiu\er, 
as to what they have cxivndtHi. 

Mr. l.OKiMKK. The otnor ^H^wer housv\< aiv it\stallinjr machinery to 
develop their tiiaxinmm a»uv>ut\t of ixnxor. aiv they not the other t>vv> 
on tl\c I'an.'uiian side! 

t'olonel Kknst. Yes; I believe thoy aiv. 

Mr. I.OKIMKK. 1 wont into v>no of tho pilv< 1 know, aiul thrvniij'h (ho 
tunnel, and I know that work, sv> far as oxeavation and v\>nstruction is 
ciMU'ornod. is ^viuplotod. and they aiv instaUinji' their machinery; 
but it did seem tv^ mo that tho (.''ntario jvoplo v\nild stop whoiv thoy 
aiv witlunit any Kv<s further than the excessive amount that they havo 
e\}VMuied in their intake. 

Mr. I . vwKVNvK. That is. that the t>ntario Tow or i.\Muiviny cvHiKl stop 
with a'^ little loss wheiv thev are now as tho Niaji^ini l\n\ or (.Vnnvany ? 

Mr. I.OKIMKK. Yos; vmi the other side of tho river. 

Mr. l.vwKKNvK. It seems to me that is nitlier ini|vrtant, 

Mr. I.OKIMKK. Have vou any opinivMv on that, Mr. Chairman f 

The I'u.viKM AN. For illustration: SupiHvso manufacturiuij- l^lants had 
boon ct>nstructod on tho t'anadian side tor tho si»ko of sonaiiiii- some 
artiv'le into the Initod States vui which thoiv is no duty. It is ^xm^ 
fectly dear that a duty v\>uld bo iiuiHv<ed so that the manufacturinij 
in those plants wv>ulvl be unpi\>titable. and it is clear. Ovpially clear, that 
a statute couKi Iv passed fvM bivlvlin^i' the tmnsmissivMi of that ^nnvor 
intv> tho Tnited States without anv claim for daniajivs apiinst tho 
Inilovl v^tates. vS> as a ivsult of it the rij^ht o\istv>* very clearly to piv- 
\ imu that pv^wer fi\MU vvmin^ intt> the Tnited States. They v\an not 
i:i> ahead with tluMr vHMistructiv>n there and take it t\>r ji"nuUi\i that it 
will be fively tninsmittiHl fi\>iu the other side. It is true that thev 
have advanced very far. and it has lai^vly Wen with .Vniorican capital. 



248 PRESERVATION OF NIAGARA FALLS. 

Mr. Lawrence. But the point to which Mr. Lorlmerwns referring, 
as I understand it, was that we say to the Niagara Power Company on 
our own side: You must stop where you are with your 8.600 cul)ic 
feet a second, and then the company on the other side, in practically 
the same condition, can go on and develop 6,000 cubic feet more. 

The Chairman. Yes. 

Mr. LoRiMER. The theory of this report is — at least this is what I 
deduct from it — that the Canadian people have either invested or are 
read 3^ to invest money enough to develop the maximum amount of the 
power that their grants will permit; but they have not come up to the 
point — that is, the Ontario company has not come up to the point where 
it is necessary for them to do that, and they have not done it. They 
are exactly in the same position that the company on the other side of 
the river is in. Now, why permit them — of course we can not stop 
them; but why agree that they shall go ahead and develop all they are 
entitled to under their grant and permit them to transmit it to the 
United States, and stop the people on our side of the water? 

Mr. Bishop. It seems to me, jNlr. Lorimer, that the joint commis- 
sion have struck the right idea; that it does not matter so much whetiier 
more is taken out of the Falls on the Canadian side, so long as the 
development of power at the Falls is for the use, probably, of the 
* American side or American capital, as much as for Canadian capital, 
and perhaps more; and, further, that the diversion could be made on 
the Canadian side with less injury to the scenic beauty than on the 
American side. It is not a matter of how much is taken from the Falls 
on the Canadian side or on the American side; it is a question as to how 
much the Falls can have taken without injuring the scenic beaut3\ 

Mr. Lorimer. If your latter statement was correct, Mr. Bishop, I 
would probabU^ come nearer to agreeing with 3'ou; but I have not 
heard anything that would indicate that this increased amount is per- 
mitted to the Canadians on the theory that it would less likely destroy 
the scenic beauty of the Falls. 

Mr. Lawrence. The statement was that it would not interfere with 
as many vested interests on this side. 

The (Chairman. I take it, however, that the Commission has taken 
into consideration the ideas expressed by Mr. Bishop, that whether 
taken from one side or the other the main question is interference 
with the scenic beauty of the Falls. We have also taken into account 
the fact that the Falls are deeper on the Canadian side, or on the other 
aide of Goat Island. There is one place right there just below Goat 
Island — Terrapin Tower, I believe, it is called 

Mr. Alexander. Yes, 

The Chairman (continuing). Where the fail is as scanty as any- 
where on the whole crest. That is on the Horseshoe side. 

Colonel Ernst. Yes, sir. 

Mr. Sparkman. You do not undertake to put any of those things in 
this bill except 3'ou want to limit the amount of water taken out? 

The Chairman. That is correct. The bill is drawn on the theory 
that we must provide for all eventualities on the Canadian side, con- 
ceding that we do not have control. 

Mr. Sparkman. You can only do that by treaty. 

The Chairman. Yes. 

•j\lr. Sparkman. The bill does not undertake to create any commis- 
sion. 



PRESERVATION OF NIAGARA FALLS. 249 

The Chairman. It asks the President to deal with the diplomatic 
questions. 

Mr. Sparkman. Yes; all that that Mr. Lorimer has been discussing 
here would come up before that commission, would it not? 

The Chairman. Yes, for tinal settlement; but for a temporary set- 
tlement, no. 

Mr. Sparkman. We could not deal with the Canadian side at all. 

Mr. LoRiMEK. We can control it. 

Mr. Sparkman. We can control it by saying that they shall not use 
the power on this side; that would have the effect for the present; I 
don't know about the future. 

The Chairman. There is another question I would like to ask Col- 
onel Ernst, and 1 wish it distinctlv understood that this does not fore- 
cast any possible action of the committee when making a recommenda- 
tion for a bill. Would friction be created in case the 8,600 cubic feet 
additional were granted to the Niagara Falls Power Company; would 
the Canadian commissioners object to that i 

Colonel Ernst. 1 can not say as to that whether they would object or 
not. They accepted our figures. We presented these figures first in 
that report which was published some weeks ago, and they have 
accepted those. 

The Chairman. Such action as that would involve another meeting 
and a readjustment of the recommendations? 

Colonel Ernst. Yes, sir. 

The Chairman. I believe that is all, Colonel Ernst, unless there are 
some other recommendations. 

Colonel Ernst. This question of levels has come up, and I think the 
committee has been a little confused about it. Here is the record for 
46 years. 

The Chairman. That is in the volume of the report for 1905? 

Colonel Ernst. This shows the oscillation of the lake. That red line 
is the average level, 222,000 cubic feet a second. You see it has not 
got up there lately, although in former times it was way above it. 

Mr. Alexander. As I understand it, the years from' 1897 to 1902 
have been years of veiy low water? 

Colonel Ernst. Yes; longer than that, from 1894. 

Mr. Alexander. From 1894 to when ? 

Colonel Ernst. To 1903, inclusive. 

Mr. Alexander. It has been very low water during that time? 

Colonel Ernst. Yes. It has not been up to the average at all during 
those years. 

Mr. Alexander. In your opinion what has caused that low stage 
of water during those nine years ? 

Colonel Ernst. Difference in rainfall. 

Mr. Davidson. During that same period Lake Superior has shown 
a higher average than it did before. 

Colonel Ernst. Yes; you see how it has gone [indicating on map]. 
That will account somewhat for the difference in the estimates of the 
discharge here [indicating on map]. 

(Thereupon, at 12.15, the committee went into executive session, 
and at the conclusion of which it adjourned.) 



APPENDIX A. 

[House Report No. 695, Fifty-ninth Congress, first session.] 

Mr. Burton, of Ohio, from the Committee on Rivers and Harbors, 
submitted the following 

REPORT. 

[To accompany H. J. Res. 83.] 

The Committee on Rivers and Harbors, to whom was referred the 
House joint resolution (H. J. Res. 83) calling upon members repre- 
senting the United States upon the International Commission, created 
by section 4 of the river and harbor act of J une 13, 1902, to report to 
Congress upon such action as in their judgment is necessary and desir- 
able to prevent the further depletion of water flowing over Niagara 
Falls, and also directing them to exert all possible efforts, in conjunction 
with the members of the commission represening the Dominion of 
Canada, if practicable, for the preservation of the falls in their 
natural condition, would respectfully report, recommending that the 
resolution be adopted. 

Numerous petitions have been referred to this committee protesting 
against the use of the waters of Niagara River for power purposes. 
The opposition manifested to the promotion of material interests at 
the cost of the scenic grandeur of Niagara Falls has been so vigorous 
and so general as to cause the President to direct attention to the sub- 
ject in his message, and also to justify action by Congress. It has 
been alleged that the utilization of the waters under privileges already 
granted may cause the cataract on the American side to disappear 
entirely. 

The members of the committee regard this resolution as the most 
practical and efficient step to be taken at this time to prevent further 
injury. The commission referred to was created by the river and har- 
bor act of 1902. It consists of three members from the United States, 
who act in connection with an equal number from Canada. The mem- 
bers were chosen to investigate the conditions and uses of the waters 
adjacent to the boundary line between the United States and Canada, 
including the waters of the lakes and rivers whose natural outlet is by 
the river St. Lawrence to the Atlantic Ocean. 

251 



252 PRESEKVATION OF NIAGARA FALLS. 

In the creation of this Commission it was recognized that problems 
pertaining to tlie waters of the Great Lakes and connecting waters 
must be international in their character. The members of the Com- 
mission, both from the United States and Canada, have had under 
consideration the subject of waters on the international boundar}^ line, 
including the uses of the water in Niagara River at the falls. It is 
believed that the Canadian commissioners will join with those from the 
United States in recommending such measures as will secure the object 
sought, and that a report can be made at an early date which will 
enable Congress to act intelligently in the premises. 



PKESERVATION OF NIAGARA FALLS. 253 



APPENDIX B. 

[Senate Report No, 1611, Fifty-ninth Congress, first session.] 

Mr. Brandegee, from the Committee on Forest Reservations and the 
Protection of Game, submitted the following 

REPORT. 

[To accompany H. J. Res. 83.] 

The Committee on Forest Reservations and the Protection of Game, 
to whom was referred the joint resolution (H. J. Res. 83) for a report 
upon the preservation of Niagara Falls, report the same favorably 
without amendment and recommend its adoption. 

A similar Senate resolution, to wit, S. R. 2i, has been reported to 
the Senate by the Committee on Foreign Relations. In view of the 
great public interest manifested in the protection of Niagara Falls from 
injury of any kind, it is necessary that early action should be taken. 
The object of both the resolutions referred to is to ascertain what the 
actual conditions are at Niagara Falls and to pass such legislation as 
may be necessary to protect the falls. S. R. 24 requests that the 
President invite the Government of Great Britain to join in the forma- 
tion of an international commission for this purpose. House Joint 
Resolution 83 requests a commission, which is already in existence, 
to furnish this information. The river and harbor act, which was 
approved June 13, 1902, contained a provision for an international 
commission, composed of representatives from the United States and 
Canada, to investigate the conditions and uses of the waters adjacent 
to the boundary line between the United States and Canada. 

Soon after the passage of the act an invitation was extended to the 
Government of Great Britain to join in the formation of a commission, 
which was accepted in the summer of 1903. The American members 
of the commission were appointed October 2, 1903. They are Col. 
O. H. Ernst, Corps of Engineers, U. S. Armv; Mr. George Clinton, 
of Buffalo, N. Y., and Prof. Gardner S. Williams, of Ithica, N. Y. 
The Canadian members are Mr. W. F. King, chief astronomer, of 
Ottawa; Mr. J. P. Mabee, K. C, of Toronto, and Mr. Louis Coste, 
of Ottawa. The Canadian commissioners were not appointed until 
January, 190.5. Owing to this fact the commission did not begin its 
labors until that vear. The tirst meeting of the full commission was 
held in Washington, D. C, on May 25, 1905. 

The process of creating a joint commission, composed of members 
from different countries, is necessarily a slow and tedious method, and 

P K F — 00 17 



254 PRESERVATION OF NIAGARA FALLS. 

this is shown very clearly by the fact that the existing- commission, 
which was authorized in 1902, was not able to hold its first meeting 
until 1905, a little more than three years after its creation. The 
annual report of the Secretary of War for the year 1905, on page 
321, section 23, states: 

Since it completed its organization in September the commission has made good 
progress in the collection of data liearing npi)n some of these questions, particularly 
those relating to the use of water at Niagara Falls and to the regulation of the level 
of Lake Erie by works near its outlet. With reference to the former, although not 
ready to report, it thought proper to pass, at its session of October 28, the following 
resofution, of which copies were sent to the Secretary of War of the United States 
and the minister of public works of Canada, viz: 

''Resolved, That this commission recommends to the Governments of the United 
States and Canada that such steps as they may regard as necessary be taken to pre- 
vent any corporate rights or franchises being granted or renewed by either Federal, 
State, or provincial authority for the use of the waters of the Niagara River for 
power or other purposes until this commission is able to collect the information nec- 
essary to enable it to report fully upon the ' conditions and uses' of those waters to 
the respective Governments of the United States and Canada." 

On page 315 of the same report of the Secretary of War appears 
the report of the International Waterways Commission as to the prog- 
ress it has made in the performance of its duties. In view of the fore- 
going considerations it would seem preferable that the Senate should 
pass the resolution which has already been passed by the House of 
Representatives, and call upon the existing commission, which already 
is possessed of the information desired and can furnish the same, 
therefore, without expense, at an early date, than to adopt the pro- 
posed Senate resolution, which proposes to create a new commission, 
entailing further diplomatic negotiations and the expenditure of much 
time and some expense. 

As bearing upon the subject under discussion, copies of certain 
documents are printed herewith. They are as follows: A communi- 
cation from Hon. Theodore E. Burton to Senator Brandegee; a com- 
munication from the Merchants' Association of New York to Senator 
Brandegee; a petition for the negotiation of a treaty to preserve 
Niagara Falls, by the American Civic Association and the Merchants' 
Association of New York, to the President of the United States; a 
communication from the Attorney-General of the United States to 
the President of the United States, dated October 14, 1905; a com- 
munication from the Attorney-General of the United States to the 
Merchants' Association of New Y^ork, dated December 28, 1905; a 
communication from the Secretary of War to the President of the 
Merchants' Association of New York, dated January 27, 1900; a com- 
munication from the Hon. John W. Griggs, formerly Attorney- 
General, to th(^ Merchants' Association of New York, dated January 
31, 1906. 



Committee on Rivers and Harbors, 

Hoi'SE OF Kepkesextatives, 
Washbi'iton, D. C, February U, 190e. 
My Dear Senator: I inclose data in regard to the Niagara Falls resolution. There 
is an excellent article on the subject by Charles M. Dow, president of the commission 
of the State reservation at Niagara, published in the February Outlook, of which I 
will send you a copy. Among numerous articles this gives the situation in the most 
concise form and with the most accurate statement. 

I regret that I have been delaved somewhat in sending this to you because of press 
of work. I hope the statement "transmitted herewith will give you all necessary 
information. The important point, as it seems to me, is that further diversion ot 



PRESERVATION OF NIAGARA FALLS. 255 

the water, as well as the correction of any errors which may have already been made, 
can be best accomplished by international agreement between the United States and 
Great Britain, representing Canada. The commission to which I have referred is the 
best organization to furnish net-essary information in regard to existing conditions 
and the necessarj' steps to be taken. 

Will deliver data to you in the Senate to-morrow. 

The progress report of the Waterways Commission is on page 50 of the report of the 
Secretary of War for 1905, also pages 315 to 329; reference to Niagara Falls, page 321. 
Yours, verv respectfully, 

T. E. Burton. 
Hon. Frank B. Brandegee, 

United Stales Senate. 



The Merchants' Association of New York, 

February 16, 1906. 
Dear Sra: Congressman Burton informs us that you will take charge in the Senate 
of the measure for causing the International Waterways Commission to investigate 
and report upon the diversion of the waters of Niagara River. 

This subject has recently been presented to the President by this association, in 
conjunction with others, and the President has directed the Secretary of State to 
open negotiations with Great Britain for a treaty. Mr. Burton requests' that we give 
you as much information on the subject as possible, and we therefore inclose here- 
with copy of opinions by Attorney-General Moody and former Attorney-General 
Griggs and letter from Secretary Taft, as well as a copy of the petition lileti with the 
President. 

It is, of course, essential to the purposes of a treaty that full inquiry into the facts 
should be made, and the extension of the powers of the International Waterways Com- 
mission istherefore of the first importance. It is equally important that that commis- 
sion should be supplied with the necessary funds. We have seen Secretary Taft in 
regard to it and he has agreed to make specific application to Crongress for the neces- 
sary appropriation. 

Trusting that your pending measure will promptly be approved by the Senate, we 
remain, 

Very truly, yours, The Merchants' Association of New York, 

By Feeder [CK B. De Berard. 
Hon. Frank B. Brandegee, 

United States Senate, Washington, D. C. 



petition for the negotiation of a treaty to preserve NIAGARA FALLS. 

The President: 

Sir: Your petitioners respectfully pray that you will exercise the power devolved 
upon you by the Constitution in moving for the negotiation with the Government of 
Great Britain of a treaty having for its purpose the preservation of all the natural 
scenic features of the Falls of Niagara by prohibiting or duly restricting the diver- 
sion of the waters of the Niagara River above the Falls. 

Your petitioners have been advised by eminent counsel: 

That the jurisdiction of the United States over the waters of the Niagara River is 
superior to that of the State of New York; 

That upon the exercise of the powers inhering in the United States jurisdiction 
by the State of New Y'ork will thereupon cease ; 

That for the effective protection of the waters of the Niagara River a treaty or con- 
vention between the United States and Great Bi'itain is necessary; and 

That the negotiation of such treaty or convention is within your discretion, and is, 
in no wise contingent upon previous action either by the Congress or by the legisla- 
ture of the State of New York. 

Attorney-General Moody, writing you under date of October 14, 1905, in respond?, 
to inquiry made by you consequent upon a resolution of the American Civic Associa- 
tion, said: 

"As to the ground for Federal intervention, so far as proposed, I think there can 
be no fair doubt. * * * 



256 peesp:rvation of Niagara falls. 

"The character of Niagara Falls as one of the greatest natural wonders, its situa- 
tion in a boundary river on the frontier of a foreign country, its undouljted histori- 
cal relation as a natural possession and connnon heritage — all these elements in the 
case would fully justify you in proposing, through the ordinary diplomatic channels, 
the consideration of tliis subject by the two governments immediately concerned." 

Again, under date of December 2cS, 1905, Attorney-General Moody, in a letter to 
the Merchants' Association of New York, reiterated: 

• « « * * Qii considerations of the general welfare and the highest public con- 
cern, and because of this peculiar relation of the Niagara River, as well as its naviga- 
bility in large part, there could be no doubt of the Federal interest and power." 

Hon. John W. Griggs, former Attorney-General of the United States, in a formai 
opinion given to the Merchants' Association of New York, said: 

"Whatever jurisdiction the State of New York has over the waters of the river 
and their use is subject and subordinate to the power of the National Government in 
two respects: 

"First. With respect to navigation, as to which the laws of Congress are supreme. 

"Second. As to the subject of boundary between this nation and Canada, in respect 
to which the United States and Great Britain have the right by treaty stipulation to 
impose such conditions and regulations upon the u^e of the river and its waters as 
they deem mutually proper. A treaty duly negotiated between these two powers 
and ratified by the Senate of the United States would be the supreme law of the land, 
and if in such treaty it were provided that no such use of the waters as is contem- 
plated should be hereafter made, and this regulation was enforced by act of Con- 
gress, the treaty and the legislation would be valid, the rights of the State of New 
York and all private riparian owners to the contrary notwithstanding. 

<( * * * ji; jg^ jj^ j^jy judgment, necessary, in order that full and complete con- 
trol of this subject may be obtained by the two powers, thatan international agreement 
in the form of a treaty should be made. Such a treaty would involve no infraction 
of or trespass upon the rights of the State of New York, because its rights, as above 
stated, are subordinate to the superior jurisdiction of the nation with respect to the 
stream as a navigable river and as an international boundary." 

Senator P. C. Knox, of Pennsylvania, also formerly Attorney-General of the United 
States, has also concurred in the positions taken in the foregoing opinions, further 
taking the position that inasmuch as the diversion of water above the Falls of Niagara 
occurs in a stream through which passes an international boundary, action in regard 
to this diversion can only be properly instituted through diplomatic channels, it not 
being within the power of Congress to institute such action. 

Several resolutions now pending before the Congress propose inquiry into the 
divers-ion of the waters of the Niagara River, and a very considerable number of let- 
ters received from members of Congress by tlie signatory associations and their mem- 
bers indicate that the legislation necessary to make effective the stipulations of a 
treaty would receive prompt and favorable consideration. 

Of the several bills pending in the legislature of the State of New York, some seek 
the forfeiture of the various charters affecting those waters and others pray the inter- 
vention of the United States for their protection; but we respectfully submit that it 
is evident, from the opinions cited above by three eminent legal authorities, each of 
whom has been the chief otHcial legal advi-ser of the United States Government, that 
action for the preservation of Niagara to be effective must be initiated by you through 
di])lomatic channels. 

That the authorities of the Canadian government are ready to cooperate is evi- 
denced by a letter from the prime minister of the Dominion of Canada to the presi- 
dent of the American Civic Association under date of January 31, 1906, in which 
Sir Wilfred Laurier says: 

"No communication has ever been received by the Canadian government from 
anyone connected with the Government of the United States on the suV)ject discussed 
in your letter, but we will be ready to discuss it at any time that the matter is brought 
to our attention and our cooperation invited." 

In your message to the first session of the Fifty-ninth Congress you said: "Nothing 
should be allowed to interfere with the preservation of Niajrara Falls in all their 
beauty and majesty;" a feeling in which your petitioners believe the vast majority 
of the citizens of the United States heartily concur. Your petitioners therefore 
earnestly pray that you will speedily take the steps necessary to bring the waters of 
the Niagara River under the jurisdiction of an international agreement as the only 
effective means of protecting Niagara Falls against destruction. 
Very respectfully, 

The American Civic Association, 
By J. Horace ]McFarland, President. 

The Merchants' Association of New Y'orit, 
By Clarence Whitman, I'lesiJent. 



PRESEEVATION OF NIAGARA FALLS. 257 

Department of Justice, October 14, 1905. 
The President. 

Sir: Replying to your note of October 6, in which you ask my views respecting an 
inclosed resohition of the American Civic Association, I beg to advise you informally 
as follows: 

The resolution sets forth the ordinance of Congress of 1787, which provided that 
"the navigable waters leading into the Mississippi and St. Lawrence, and the carry- 
ing places between the same, shall be common highways, and forever free, * * * 
to the citizens of the United States," and then, declaring that the preservation of 
Niagara Falls is a matter of general and vital concern, and that the wanton destruc- 
tion of the Falls is imminent as a result of action taken by the New York legislature 
in contravention of the rights and violation of the welfare of the people, the Asso- 
ciation urges you, in conjunction with the governor-general of Canada, to appoint a 
joint commission to consider and report upon immediate measures to avert the 
impending di.'^aster. 

It appears that for some years, both on the American and the Canadian side, power 
plants have been established under charters from the State of New York or the 
I)onunion or provincial government of Canada, respectively, by which, necessarily, 
the amount of water flowing over the cataract on either side is diminished to some 
extent. I am not aware of any recent grant of franchises on the American side, and 
am informed that in a late effort to obtain additional or enlarged franchises it became 
evident that the people and the legislative authorities of the State of New York were 
firmly opposed to any increase whatever of such rights or consequent diminution of 
the volume of water in the stream above the Falls. I am not informed how the sit- 
uation is in this respect on the Canadian side. 

On the one hand, it is asserted by competent and reliable observers living in the 
neighborhood — that is, at Buffalo — that so far as the American falls at least are con- 
cerned, the use of the water for power purposes up to the present and under existing 
charters does not cause a subtraction from the volume flowing over the falls so as to 
affect the beauty of the cataract itself to any appreciable degree; and that an east 
wind blowing up Lake Erie diminishes the flow of water more than it is diminished 
by a subtraction of all that the power companies have thus far taken. In other 
words, the eye can not detect any difference in the amount of water going over the 
falls now and the amount gf)ing over before any of the power plants were constructed. 
But it is also true, I am informed, that under present franchises a greater amount of 
water may still be subtracted, and doubtless a limit should be fixed by due authority, 
and very likely no further franchises should be granted. 

As to the ground for Federal intervention, so far as proposed, I think there can be 
no fair doubt. Strictly, of course, since the water withdrawn from the river above 
the falls is taken below the farthest navigable point on that side and is returned to 
the river (suh)ject to a negligible amount of waste) below the falls above its navi- 
gable portion on that side, the equal and free rights in the stream as a navigable 
waterway in the Great Lakes system which were a.ssured by the ordinance of 1787 
are not at all imperiled. Nevertheless, I think that the character of Niagara Falls 
as one of the greatest natural wonders, its situation in a boundary river on the fron- 
tier of a foreign country, itl undoubted historical relation as a natural possession and 
common heritage, all these elements in the case would fully justify you in proposing 
through the ordinary diplomatic channels the consideration of this subject by the 
two Governments immediately concerned. 

The proposal is that a commission should be appointed to consider and report 
upon immediate measures for the preservation of the cataract. It may w'ell be that 
the subject can be effectively considered by the two Governments without the formal 
appointment of a comnnssion. If, however, a commission should be deemed desir- 
able by you, I would respectfully suggest that the matter be brought to the attention 
of Congress and the authority obtained for the appointment of such a commission. 
Possibly the same result might be reached by extending the authority of the existing 
Waterways Commi.csion. 

Very respectfully, , 

Attorney- General. 
The President, 

The White House. 



Department of Justice, 

Washington, December 28, 1905. 
Sirs: I beg to say that I have received and considered your letter of December 22, 
relating to the preservation of Niagara Falls. As you will understand, I am not per- 
mitted under the law to give you an opinion on the legal questions raised in your 
letter. 



258 PRESERVATION OF NIAGARA FALLS. 

You are in error in thinkino; that there is a conflict between the views expressed 
by the President in his message on this subject and those suggested in my informal 
letter of advice to the President. I merely counseled him that international consid- 
eration and agreement on this subject were desirable and necessary, and that he was 
fully authorized to invite concert of action with the British Government as represent- 
ing the Dominion of Canada. 

As illustrating the logic of the case, necessitating some joint action, I referred to 
the ]>atent fact that, apart from the question of the navigability of Niagara River, 
ex(ei>ting just above and just below the falls, it is itself a boundary between the 
United States and Canada. I therefore suggested the view that, on considerations 
of the general welfare and the highest y)ublic concern and because of this peculiar 
relation of the Niagara River as well as its navigability in large part, there could be 
no doubt of the Federal interest and power. Of course there is no settled ruling on 
the su1)ject, and no authorities clearly sustaining the idea of any exclusive Federal 
control, and the principle was suggested simply in order to show that the President 
Avould be on firm ground in initiating correspondence with the British authorities on 
the subject. 

There can be little question that the State of New York has the immediate inter- 
ests, rights, and powers in the prenuses. What the proper delimitation is between 
the State and the nation, and this nation and a neighboring power, is a matter 
for study, negotiation, and judicial exposition. As to the international aspect, the 
question is, how the two governments can act in concert to prevent injury to the 
natural wonder, rather than what the delimitation of jurisdiction between them is. 
The latter point is, of course, well settled l)y established rules as to boundary waters, 
carried into practice by actual agreements and surveys. 

In other words, I have not attempted to do more than indicate that without denial 
of the initial rights and functions (if the State, there is a great unsettled question here ' 
of the nature and scope of the Federal power. I have not attempted to settle it, and 
manifestly I shall not do so; It is to be assumed that the movement of public^ opin- 
ion and action in the State, to which you refer, will converge in a beneficent intent 
and object with the similar movement of the nation at large and of the Canadian 
government. 

I may, however, mention the fact that the members of the American section of the 
International Waterways Commission have urged that no further corporate rights or 
franchises be granted or renewed by either Federal, State, or provincial authoiity for 
the use of the waters of the Niagara River for power or other purposes, until the 
commission is able to report fully upon the conditions and uses of those waters to 
the respective governments of the United States and Canada (Report Secretary of 
War for 1905, p. 321). Relative to the nature of the Niagara River as straight or 
navigable water or boundary water, respectively, I may refer you to the following 
New York cases: Kingman v. Sparrow, 12 Barb., 201, 205; Hensler v. Hartman, 16 
Abbott's New Cases, page 176, note; Matter of State Reservation at Niagara, Id., 159, 
185-188.. 

In accordance with your request, I inclose a copy of my letter of October 14 last 
to the President. 

Respectfully, William H. Moody, 

Attorney-General. 

The Merchants' Association of New York, 

S46 Broadway, New York, N. Y. 



War Department, 

Wasliington, January S7, 1906. 

Dear Sir: I beg to acknowledge the receipt of your inquiry of the 22d ultimo, in 
respect to the jurisdiction exercised by this Department over the falls in the Niagara 
River. 

Certain powers in respect to the navigable waters of the United States are vested 
in Congress by the commerce clauses of the Constitution; and a very limited delega- 
tion of the powers so conferred has been vested by Congress in the Secretary of War, 
extending to the establishment of wharves, dams, bridges, and the like, in such 
waters, ancl to the removal of certain obstructions therefrom, together with the 
power to prevent such a diminution in the volume or flow of particular bodies of 
water as will impair their usefulne.ss for purposes of navigation. 

Although the power to detenuine whether certain waters are or are not navigable 
is vested in the courts and in Congress and is not ordinarily a matter for executive 
determination, it may, I think, be safely assumed that the Niagara River in the 



PRESERVATION OF NIAGARA FALLS. 259 

immediate vicinity of the falls is not navigable, certainly not between Echota and 
Lewiston, a distance of about 7 miles; so that for that distance the river may be 
be regarded as withdrawn from Executive jurisdiction, unless it be shown that the 
water taken from the stream above the falls for power purposes diminishes the flow 
below the rapids, where the river is again used for purposes of navigation. It is 
assumed that the water which flows through the generators of electric power is 
returned to the stream in the immediate vicinity of the falls. 

If this be the case (and the question is one of fact which is susceptible of easy 
determination), 1 know of no authority of law by which the Department can effect- 
ively interpose to prevent the diversion of the water from the purposes to which it 
is now being applied. If, on the other hand, there is such a diversion of the flow of 
the stream as is calculated to diminish its navigable capacity, and the fact of such 
diminution can be satisfactorily established, I am prepared to take the matter under 
advisement with a view to the application of an appropriate remedy. 

I am fully in sympathy with the efforts that are now being put forth to preserve 
the falls from destructif)n, and will be glad to recommend such legislation to Congress 
as may be calculated to accomplish so laudable a purpose. 
Very trulv, vours, 

Wm. H. Taft. 

The President of the Merchants' Association of New York, 

346 Broaduay, Xew York CiUj. 



New York, January 81, 1906. 

Gentlemen: You have asked for my opinion as to the jurisdiction and power of 
the United States over the use of the waters of Niagara River, above and below the 
Falls of Niagara, at points where it is contemplated by various interests to take water 
from the river for power or commercial purposes, returning it again .lower down the 
stream. 

In view of your desire to have my opinion for use to-morrow, I can not do more 
at this time than to indicate the results at which I have arrived, leaving it for a 
future time to formulate more fully the reasons and principles which govern the 
subject. 

Niagara River is the boundary between the United States and the Dominion of 
Canada, the latter being subject to the national control of the Kingdom of Great Britain. 
For purposes of ordinary domestic jurisdiction the river on this side to the center 
line thereof is under the jurisdiction of the State of New York. The courts of New 
York have held that the soil of the river between low water mark and the middle of 
the stream is in the State and not in any private individual. (Matter of State Reser- 
vation at Niagara, 16 Abbott's New Cases, 395.) 

Whatever jurisdiction the State of New York has over the waters of the river and 
their use is subject and subordinate to the power of the National Government in two 
respects: 

First. With respect to navigation, as to which the laws of Congress are supreme. 

Second. As to the subject of l:)()undary between this nation and Canada, in respect 
to which the United States and Great Britain have the right, by treaty stipulation, to 
impose such conditions and regulations upon the use of the river and its waters as 
they deem mutually proper. A treaty duly negotiated between these two powers 
and ratified by the Senate of the United States would be the supreme law of the 
land, and if in such treaty it were provided that no such use of the waters as is con- 
templated should be hereafter made and this regulation were enforced by act of 
Congress, the treaty and the legislation would be vahd, the rights of the State of New 
York and all private riparian owners to the contrary notwithstanding. 

You will observe that the rule last stated is in harmony with that suggested in the 
letter of the Attorney-General to the Merchants' Association of December 28, 1905. 

It may be observed that Congress so far in its legislation upon the suV)ject of navi- 
gable waters, in respect of which the United States has jurisdiction, has only gone to 
the extent of forbidding obstructions to the " navigable capacity " of such waters, and, 
therefore, an obstruction to a boundary stream which did not interfere with the " navi- 
gable capacity" of the waters would not be within the jurisdiction of the War Depart- 
ment under present legislation nor subject to injunction under a bill in equity. Of 
course any diversion of water from the Canada side would be beyond the jurisdiction 
either of the Secretary of War or the courts of the Union. It is, in my judgment, 
necessary, in order that full and complete control of this subject may be oT)taiiied by 
the two powers, that an international agreement in the form of a treaty should be 
made. Such a treaty would involve no infraction of or trespass upon the rights of 



260 PRESERVATION OF NIAGARA FALLS. 

the State of New York, because its rights, as above stated, are subordinate to the 
superior jurisdiction of the nation with respect to the stream as a navigable river and 
as an international boundary. . , tt ■. j o^ ^ i a- t- trU 

An interesting decision of the Supreme Court of the United States relative to the 
Rio Grande River, the boundary between the United States and Mexico, is that of 
United States v. Rio Grande Irrigation Company (174 U. S., 690). 

Very respectfully, j^^^ ^ ^^^^^^^ 

The Merchants' Association, New York. 



PRESERVATION OF NIAGARA FALLS. 261 



APPENDIX C. 

[Senate Document No. 242, Fifty-ninth Congress, first session.] 

MESSAGE 

FROM THE 

PRESIDENT OF THE UNITED STATES, 

TRANSMITTING 

THE REPORT OF THE AMERICAN MEMBERS OF THE INTERNA- 
TIONAL WATERWAYS COMMISSION, WITH LETTERS FROM THE 
SECRETARY OF STATE AND THE SECRETARY OF WAR INCLUD- 
ING MEMORANDA REGARDING THE PRESERVATION OF NIAG- 
ARA FALLS. 



March 27, 190G. — Read; referred to the Committee on Foreign Relations and ordered 

to be printed. 



To the Senate and House of Representatives: 

I submit to j'^ou herewith the report of the American members of 
the International Waterwa3^s Commission regarding the preservation 
of Niagara Falls. I also submit to yoxx certain letters from the Sec- 
retary of State and the Secretary of War, including memoranda show- 
ing what has been attempted by the Department of State in the effort 
to secure the preservation of the falls by treat3^ 

I earnestly recommend that Congress enact into law the suggestions 
of the American members of the International Waterways Commis- 
sion for the preservation of Niagara Falls, without waiting for the 
negotiation of a treaty. The law can be put in such form that it will 
lapse, say in three years, provided that during that time no interna- 
tional agreement has been reached. But in any event I hope that this 
Nation will make it evident that it is doing all in its power to preserve 
the great scenic wonder, the existence of which, unharmed, should be 
a matter of pride to every dweller on this continent. 

Theodore Roosevelt. 

The White House, March 27, 1906. 



Department of State, 

Washington, March '21,,, 1906. 
Dear Mr. President: I return the letter of the Secretary of War 
with the report of the American members of the International Water- 
ways Commission, regarding the preservation of Niagara Falls. 



262 PRESERVATION OF NIAGARA FALLS. 

I think the legislation recommended by the Commission would be 
very useful. 

Faithfully yours, Elihu Root. 



War Department, 

Washington, ALarch "20, 1906. 

My Dear Mr. President: I herewith transmit, for submission by 
you to Congress, the report of the American members of the Inter- 
national Waterways Commission, made by them in accordance with the 
joint resolution approved March 15, 1906, and set out in their report. 
The recommendations of the Commission of legislation necessary and 
desirable to prevent the further depletion of water flowing over the 
Niagara Falls suggests the question whether such legislation is within 
the limitations of the legislative power of Congress, when applied to 
nonnaviga])le parts of a stream which is within the borders of a State 
and which is only parti}" navigable, if the use of the water to be inhib- 
ited does not afl'ect navigation in the navigable part of the stream. below. 
It would seem that the treatj^ power exercised by the President and 
Senate with respect to a stream which forms the boundary between 
this country and another, would be subject to less limitation in this 
regard than the legislative power of Congress, and therefore that it 
might be more advisal^leto effect the result sought by Congress through 
a treaty than through a statute. 

Very respectfully, ,Wm. H. Taft, 

Secretary of War. 

The President. 



BEPORT of the AMERICAN MEMBERS OF THE INTERNATIONAL WATERWAYS 
COMMISSION REGARDING THE PRESERVATION OF NIAGARA FALLS. 



International, Wateravays Commission, 
Office of Chairman American Section, 

WashhujtoR, D. C, March 19, 1906. 
Sir: 1. The American members of the International Waterways 
Commission have the honor to submit for transmittal to Congress this 
report, in compliance with the following joint resolution approved 
March 1.5, 1906: 

Resolved by the Senate and House of Representatives of the United States of America in 
Congress assembled, That the members representing the United States upon the Inter- 
national Commission created by section four of the river and harbor act of June thir- 
teenth, nineteen hundred and two, be requested to report to Congress at an early 
day what action is in their judorment necessary and desirable to prevent the further 
depletion of water flowing over Niagara Falls; and the said members are also requested 
and directed to exert, in conjunction with the members of said Commission repre- 
senting the Dominion of Canada, if ]iracticable, all possible efforts for the preserva- 
tion of the said Niagara Falls in their natural condition. 

2. The surplus waters of Lake Erie are discharged through the 
Niagara River into Lake Ontario, the mean level of Lake Erie beinj 
572.86 feet and that of Lake Ontario being 246.61 feet above the sea. 
Leaving Lake Erie at Buffalo, the river is navigable and flows with a 
moderate slope to a short distance below Welhind River, or Chip- 
pewa Creek, about 19 miles, in which distance it has a fall of about 14 



PEESERVATIOK OF NIAGARA FALLS. 263 

feet. The slope here is suddenly increased and the river ceases to be 
naviofable. In the next half mile it has a fall of about 50 feet, form- 
ing- the rapids above the falls. It is divided b}' Goat Island into two 
arms of unequal size, that on the Canadian side carr^'ing about seven 
times the volume of water carried by that on the American side. At 
the foot of Goat Island the waters of both arms plunge over a vertical 
precipice, constituting- Niag-ara Falls proper, that on the Canadian side 
being- usually !;".own*as the Horseshoe Fall, and that on the American 
side as the American Fall. The height of the Horseshoe Fall is about 
161 feet, and that of the American l^'all 165 feet. Immediately below 
the falls the river is again navigable for a short distance, and then 
assumes the character of rapids as far as Lewiston, 7 miles from Lake 
Ontario, where it again becomes navigable and remains so until it 
enters the lake. 

3. The volume of water flowing varies with the level of Lake Erie, 
which level is subject to variations of several feet, depending- upon the 
rainfall, barometric pressure, and direction and force of the wind. 
At the mean level of the lake (elevation 572.86) the volunie of dis- 
charge is 222,100 cubic feet per second. At a very low stage (elevation 
571) the volume is 180,800. (See Annual Report, Chief of Engineers, 
U. S. Army, for 1900, p. 5361.) For short periods in midwinter, or 
■with prolonged adverse winds, it has sometimes been even less. 

4. It is the great volume of water in the falls themselves and in the 
rapids w^hich makes the place unique. The tremendous display of 
power in wild turbulence fascinates the mind, and gives to the ques- 
tion of Niagara's preservation a national interest. 

5. The local authorities on both sides of the river have recognized 
their responsibilities in this matter, but have taken somewhat different 
views as to what these responsibilities are. As long ago as 1883 the 
State of New York provided for the acquisition of the lands in that 
State adjoining the falls, with a view to creating a public park, and in 
1885 it declared that these lands "shall forever be reserved by the 
State for the purpose of restoring the scenery of the Falls of Niagara 
to and preserving it in its natural condition; they shall forever be kept 
open and free of acccvss to all mankind without fee, charge, or expense 
to any person for entering upon or passing to or over an}^ part 
thereof." A commission of five was created to carry out the purposes 
of the act. The State reservation now includes 412 acres, part of 
wdiich is under water, and an annual appropriation of some $25,000 is 
made for its care and maintenance. The commission has no jurisdic- 
tion beyond the limits of the reservation, but it has never throughout 
its existence failed to protest and bring all its influence to bear against 
the depletion of the falls by the abstraction of water above and beyond 
the limits of the reservation. Nevertheless, the State legislature has 
granted numerous franchises for the diversion of water, as will af)pear 
further on. 

6. Soon after the creation of the New York State reservation a pub- 
lic park was created on the Canadian side, called the Queen Victoria 
Niagara Falls Park, and was placed under the control of five commis- 
sioners. This park now extends practically the whole length of the 
Niagara River from Lake Erie to Lake Ontario, and embraces an area 
of about 731 acres. By an act of the Ontario legislature (62 Victoria, 
chap. 11), it was enacted that ''The said commissioners, with the 
approval of the lieutenant-governor in council, may enter into an 



264 PRESERVATION OF NIAGARA FALLS. 

agreement or agreements with any person or persons, company or 
conipanies, to take water from the Niagara River or from the Niagara 
or Welland rivers at certain points within or without the said park 
for the purpose of enabling such person or persons, company or com- 
panies, to generate within or without the park electricity, or pneu- 
matic, h3"draulic, or other power conducting or discharging said water 
through and across the said park or otherwise in such manner, for such 
rentals, and upon such terms and conditions as may be embodied in the 
agreement or agreements and as ma}^ appear to the lieutenant-governor 
in council to be in the public interest." In 1903 this act was amended 
by adding thereto the words " but no such agreement shall be oper- 
ative unless and until ratitied and confirmed by the legislative assem- 
bly" (3 Edward VII, chap. 7). Inasmuch as the park receives no aid 
from the legislature in the way of annual appropriations for its sup- 
port, the commissioners have felt justified in using with some freedom 
the power thus granted in order to obtain a revenue for the general 
improvement and maintenance of the park. Prior to the amendment 
of 1903 tliey entered into four important agreements for the diversion 
of water, and caused an investigation to be made as to the availability 
of additional sites for power works. Two of these agreements were 
with a single corporation, which has thus far utilized only one. 

7. The great water power available at Niagara Falls naturally 
attracted the attention of engineers at an early day, but it was not 
until it could be transmitted and used in the form of electricity that its 
development on a large scale became financially practicable. There 
are now five principal corporations engaged in furnishing or prepar- 
ing to furnish electricity for commercial purposes, obtained from the 
water power, two of them located on the American and three on the 
Canadian side. A brief description of each is here given. A map 
showing their location is submitted herewith. It is to be remarked 
that none of the diversions have been sanctioned by the United States 
Government. 

8. I. Niagara Falls Hydraulic Power and Maniifacturiug Com- 
pany. — This company was organized in 1877 under the general laws of 
the State of New York. It purchased a canal which had been con- 
structed before the civil war leading from Port Day, above the falls, 
through the city of Niagara Falls, to the edge of the cliff below the 
falls, where a grist mill had been established. (See map). The length 
of this canal was about 4,400 feet, its width 36 feet, and its depth 8 feet. 
A width of 70 feet and depth of 10 feet had been projected. In 1881 the 
companj^ established its first station for suppl3dng electricity for light- 
ing, this being the first public distribution for commercial purposes 
of electricity derived from Niagara Falls. The increasing demand for 
electricity and the improved methods of transmitting it led to a steady 
development of the works of this company and to the establishment 
of others. In 1895 an important enlargement of the canal having been 
begun, the right of the compan}^ to take water from the river was 
questioned by the commissioners of the State reservation at Niagara. 
An opinion was obtained from the attorney-general of the State of New 
York (copy appended marked "A") in which it was held that the 
Niagara Kiver is a navigable river in law, that the company had no 
right to increase the capacity of its canal, that it had no right to divert 
any water from the river, and that a diversion of water sufficient to 
diminish the flow over the falls was a nuisance and could be restrained. 



PEE9ERVAT10N OF NIAGARA FALLS. 265 

The New York legislature thereupon passed an act (chap. 968, Laws of 
1896), in which the right of the company "to take, draw, use, and lease 
and sell to others to use the waters of Niagara Kiver for domestic, 
municipal, and sanitary purposes, and to develop power therefrom for 
its own use and to lease and sell to others to use for manufacturing, 
heating, lighting, and other business purposes, is hereby recognized, 
declared, and confirmed," No limit as to the time during which these 
rights were to exist was fixed, but the amount of water to be taken 
was limited to that which could be drawn by a canal 100 feet wide, with 
such depth and slope as would maintain at all times a depth of 14 feet. 
The amount of water thus described is not specific. It is computed to 
be about 9,500 cubic feet per second for the works now under construc- 
tion, but it would be possible to construct works under difi'erent plans 
which would use a much greater quantity of water. The company is 
now using about 4,000 cubic feet per second. It is extending its works, 
and expects to develop about 134,000 horsepower, in addition to which 
its tenant companies will develop about 8,000 horsepower. It has paid 
nothing to the State for its privileges. A list of the more important 
industries which this company supplies with electricity is given in 
Appendix B. Its managers estimate that the power plant and the 
industries dependent upon it for power represent an investment of 
$10,000,000. 

9. II. Niagara Falls Power Company. — In 1886 the New York leg- 
islature granted a charter to a company called the "Niagara River 
Hydraulic Tunnel Power and Sewer Company of Niagara Falls," sub- 
sequently amended in 1886, 1889, 1891, 1892, and 1893. (See chapter 
83, 1886'; chapter 489, 1886; chapter 109, 1889; chapter 253, 1891; 
chapter 513, 1892; chapter 477, 1893.) In 1889 the name of the com- 
pany was changed to "The Niagara Falls Power Company." It is 
authorized to take water sufficient to generate 200,000 horsepower, 
computed to be about 17,200 cubic feet per second. Its franchise is 
for fifty years from March 31, 1886. The location of its works is 
shown upon the map. Beginning about a mile above the falls a short 
intake canal is cofistructed nearly at right angles with the river shore. 
Upon each side of the canal deep pits are excavated in the rock, at 
the bottom of which are placed the turbines, and over which are placed 
the power houses. The water, after passing through the turbines, is 
carried off by atunnel about 21 feet in diameter under the city of Niagara 
Falls to the lower river, a distance of about 7,000 feet. The com- 
pany has in operation two power houses haying a combined capacity 
of about 105,000 horsepower. 

It is working the plant nearly to its full present capacity, using 
about 8,000 cubic feet p?r second, in addition to which one of its ten- 
ant companies is using about 600 cubic feet. It paid nothing to the 
State for its privileges, but is bound to furnish free of charge elec- 
tricity for light and for power and also water for the use of the State 
in the State reservation at Niagara and the buildings thereon, when 
requested to do so by the commissioners of the State reservation. It 
distributes electric power over a wide area of territory and to a great 
variety of commercial interests in Niagara Falls, Tonawanda, Olcott, 
and Buffalo, in some cases over 35 miles distant. A list of the con- 
sumers dependent upon this company is given in Appendix C. The 
investment is stated by the managers to be over $6,000,000 in the 



266 PRESERVATION OF NIAGARA FALLS. 

power plant, and ^7,000,000 or $8,000,000 in other industries estab- 
lished on its lands at Niagara Falls and dependent upon it. 

10. III. Canadian Niagara Power Company. — This company is an 
allied compan}^ of the Niagfara Falls Power Company just described. 
It was incorporated by an act of the legislature of the Province of 
Ontario in 1892, which also confirmed an agreement dated April T, 
1892, between the company and the commissioners for the Queen Vic- 
toria Niagara Falls Park. In 1899 an act was passed conferring upon 
those commissioners authority to modif}^ this agreement and to make 
other agreements for the construction of power works, as specified 
above. The agreement was modified July 15, 1899, and June 19, 1901. 

11. The company is authorized to construct certain works, which 
works will have a capacity of 110,000 horsepower, and by inference to 
take the quantity of water required for that purpose, although the 
agreement does not in terms limit the capacity of the works or the 
quantity of water. The amount required to supply the works which 
have been approved and are under construction is computed to be about 
9,500 cubic feet per second. The location of the works is shown upon 
the map. They are of the same general type as those of its allied com- 
pany on the American side. Water is taken from the river about a 
quarter of a mile above the falls through a short canal and fore ba}^ 
and discharged through penstocks into turbines near the bottom of a 
deep wheel pit excavated in the solid rock, over which is placed the 
power house. After passing through the turbines, the water is carried 
off by a tunnel about 2,000 feet long, and discharged into the river 
below the falls. The works are not completed, and less than half of 
the generators have been installed, the quantit}^ of water used thus far 
being about 2,600 cubic feet per second. They are operated in con- 
nection with those of the allied company on the American side. They 
represent an investment of several million dollars. 

12. The company agrees to pa}' for its privileges an annual rental 
of $15,000, for which it may generate 10,000 electrical horsepower or 
less; for all above 10,000 and under 20,000 horsepower it pays in 
addition to the above §1 per annum for each horsepower; for all above 
20,000 and under 30,000 it pays a further sum of 75 cents per annum 
for each horsepower; and for all above 30,000 it piys a still further 
sum of 50 cents per annum for each horsepower; that is to say, the 
annual rental for generating 30,000 horsepower will be $32,500, and 
for generating 110,000 horsepower will be $72,500. 

13. The period for which the privileges are granted is fifty years 
from May 1, 1899, but the company is entitled, at its option, to three 
renewals of twenty years each, the rentals to be adjusted at the time 
of each renewal, if the lieutenant-governor in council so desires, and 
at the end of the third renewal the lieutenant-governor in council 
may require a still further renewal of twent}^ years; the entire period 
thus covered by the agreement being one hundred and thirty years. 

14. lY. Ontario Power Company. — This company was incorporated 
by an act of the Dominion Parliament in 1887, and was empowered to 
take water from the Wclland River, or Chippewa Creek, near its 
mouth at Chippewa— that is, indirectly from the Niagara River. On 
the 11th of April, 1900, it entered into an agreement with the park 
commissioners to construct works for that purpose, but before pro- 
gressing far in the work of construction it changed its plans, and on 
the 28th of June, 1902, it made another agreement with the commis- 



PRESERVATION OF NIAGARA FALLS. 26T 

sioners, under which it is now working-. It claims that the first agree- 
ment is still valid and may be utilized hereafter if the company so desires. 
Under the agreement of June 28, 1902, the company is authorized to 
construct works according to certain plans submitted, which works 
will have a capacity of 180,000 horsepower, and by inference to take 
the quantity of water required for that purpose, although the agree- 
ment does not in terms limit the capacity of the works or the quantity 
of water. The amount required to suppl}^ the works, which have been 
approved and are under construction, is computed to be about 12,000 
cubic feet per second. The location of the works is shown upon the 
map. Water is taken from the river at Dutferin Island, about half a 
mile above the intake of the Canadian Niagara Power Company, or 
three-quarters of a mile above the falls, and after passing through an 
elaborate system of screens enters a gatehouse, and thence is trans- 
mitted through three underground conduits, each 18 feet in diameter, 
to a power house located near the foot of the clitf below the falls. The 
length of the pipe line to the nearest penstock is 6,180 feet, and to the 
most distant penstock about 1,000 feet more. The works, which rep- 
resent an investment of several million dollars, are not completed, 
only about 2,000 cubic feet per second now being used. 

15. The company agrees to pay for its privilege an annual rental 
of $30,000, for which it may generate 20,000 electrical horsepower or 
less. For all above 20,000 and under 30,000 horsepower it paj's, in 
addition to the above, $1 per annum for each horsepower; for all 
above 30,000 and under 10,000 it pays a further sum of 75 cents per 
annum for each horsepower, and for all above 40,000 it pays a still 
further sum of 60 cents per annum for each horsepower; that is to 
say, the annual rental for generating 40,000 horsepower will be 
$47,500, and for generating 180,000 horsepower will be $117,500. 

16. The period for which the privilege is granted is fif t}^ j^ears from 
April 1, 1900, but the company is entitled, at its option, to three 
renewalsof twenty years each, and after the third renewal the lieutenant- 
governor in council may require a fourth renewal of twenty years, the 
rentals to be adjusted at each renewal, the entire period thus covered 
by the agreement being- one hundred and thirty years. 

17. V. Electrical Develoj)ment Company. — On the 29th of January, 
1903, the commissioners for the Queen Victoria Niagara Falls Fark 
entered into an agreement with three citizens of Canada, subsequently 
transferred to "The Electrical Development Company of Ontario 
(Limited)" incorporated by act of the legislature of Ontario. (5 Edward 
Vll, chap. 12.) Under this agreement authority was given to take 
from the Niagara River water sufficient to develop 125,000 electrical 
horsepower. The amount is computed to be 11,200 cubic feet per 
second. The location of the works is shown upon the map. Water 
is taken from the river about midway between the intakes of the 
Canadian Niagara Power Company and of the Ontario Power Com- 
panv, or about half a mile above the falls. A gathering- dam, about 
750 feet long, extends out into the river obliquely upstream, designed 
to divert the required amount of water into the power house, which 
is located upon the original shore line. Under the power house is a 
wheel pit, excavated in the solid rock to a depth of 158 feet, at the 
bottom of which are placed the turbines. After passing through the 
turbines the water is conveyed by a tunnel to the base of the falls 
and discharged about midway between the Canadian and American 



268 PRESERVATION OF NIAGARA FALLS. 

shores. The works are not completed, and no water is now being 
used. Thej represent an investment of several million dollars. 

18. The company agrees to pa}' for its privileges an annual rental of 
$15,000, for which sum it may generate 10,000 electrical horsepower 
or less; for all above 10,000 and less than 20,000 horsepower it pays, 
in addition to the above, $1 per annum for each horsepower; for all 
above 20,000 and less than 30,000 it pays a further sum of 75 cents 
per annum for each horsepower; and for all above 80,000 it pays a stiU 
further sum of 50 cents per annum for each horsepower; that is, to say, 
the annual rental for generating 30,000 horsepower will be $32,500, 
and for generating 125,000 horsepower will be $80,000. 

19. The period for which the privilege is granted is fifty years from 
February 1, 1903, but the same provisions are made for renewals as in 
the cases of the other companies, and the entire period covered by the 
agreement is thus one hundred and thirty years. 

20. In the case of each of the Canadian companies the authorities 
reserve the right to require that one-half the power generated shall be 
supplied to places in Canada. 

21. Water is diverted also by the Park Electric Railway, under 
authority of the commissioners, the quantity to be used under plans 
now in execution being estimated at 1,500 cubic feet per second, devel- 
oping about 8,000 horsepower, while the actual present use is about 
600 cubic feet per second. 

22. In addition to the foregoing, six charters were granted by the 
New York legislature between the years 1886 and 1894 to corporations 
organized to take water from the Niagara River, but it is believed that 
all, with the possible exception of two, have expired by limitation. 
In one case, the Niagara, Lockport and Ontario Power Company, an 
act to renew passed the legislature in 1901, but was vetoed by Gov- 
ernor Odell in his message of May 14 of that year. The company-, 
however, claims the rights granted under its original charter, and is 
constructing works for the distribution of electrical energy developed 
by other companies, but is not itself diverting water. Another cor- 
poration, the Niagara County Irrigation and Water Supply Company, 
has done some work, and claims that its charter has thus been pre- 
served, but it has diverted no Avater. A list of these charters is given 
in Appendix D. 

23. The Dominion of Canada has granted charters to two corpora- 
tions in addition to those already mentioned organized to take water 
from the Niagara River for power purposes. It has chartered two 
other corporations, organized to take for power purposes water from 
Lake Erie which would naturally be tributary to the Niagara River. 
These companies have not finally developed their plans, and it is believed 
that their franchises are therefore not perfected, although all but one 
are still in force. In one case the charter has expired by limitation. 
The charters fix no limit to the amount of water which may be used. 
A charter was granted in 1889 by the province of Ontario to the Ham- 
ilton Cataract, Power, Light, and Traction Company. This comi)any 
is using water from the Lake Erie level of the Welland Canal, which 
water would otherwise be tributary to the Niagara River. The volume 
now being used is estimated at about 1,800 cubic feet per second, and 
is to be increased. A list of these charters will be found in Appen- 
dix E. 



PEESERVATION OF NIAGARA FALLS. 269 

24. The Chicago Drainage Canal, constructed under the authority of 
the State of Illinois, was designed to divert about 10,000 cubic feet per 
second of water which would naturally flow over Niagara Falls. It 
has not been fully completed, but it now has a capacity of about 5,000 
cubic feet per second. The amount which it is actually diverting has 
thus far been limited by the Secretary of War to about 4,200 cubic feet 
per second. In addition to the foregoing, about 333 cubic feet per 
second of Lake Erie water is now taken for power purposes from the 
Erie Canal at Lockport. 

25. Full and precise information concerning the plans and the legal 
rights of the companies which have not begun or completed their 
works has not been obtainable. In the cases of the corporations now 
furnishing or preparing to furnish electricity for commercial purposes, 
the franchises are vague as to the volume of water to be used, which 
is the feature of greatest interest here. We have computed the vol- 
umes from the available data, and have endeavored to make the figures 
conservative. It must be understood that these figures are fair 
approximations. In proceeding to an examination of the effect upon 
Niagara Falls of the works proposed, the subject is much simplified 
by considering only those companies which derive their water from 
the Niagara River itself, and that is the course here pursued. Any 
effects caused by these works will be exaggerated by the other works 
mentioned. 

26. The total quantitj^ of water to be taken from the river by works 
now authorized is: 

Cubic feet. 

Niagara Falls Hydraulic Power and Manufacturing Company 9, 500 

Niagara Falls Power Company 17, 200 

Canadian Niagara Power Company 9, 500 

Ontario Power Company, not including Welland River Development 12, 000 

Electrical Development Company 11, 200 

Niagara Falls Park Railway Company 1, 500 

Total 00,900 

Of this amount 20,700 cubic feet is to be taken on the American 
side and the remainder, 34,200 cubic feet, on the Canadian side. That 
is, 27 per cent of the average discharge and 33 per cent of the low- 
water discharge of the Niagara River will cease to pass over the falls 
when these works are completed and in full operation. The quantity 
to be diverted is more than double the quantity which now passes over 
the American Fall, which at the average stage is about 27,800 cubic 
feet. That this will in general have an injurious effect upon the falls 
seems self-evident. The volume of water to be diverted is about the 
equivalent of the entire discharge of Lake Superior over the Sault Ste. 
Marie. The amount thus far actually diverted is but 17,800 cubic 
feet per second, and has had an appreciable effect upon the falls. To 
foretell with accuracy the effects in detail of the full diversion author- 
ized would require a more complete knowledge of the bed of the river 
than is now obtainable. The water taken on the Canadian side below 
the crest of the rapids will affect the Horseshoe Fall alone. If all 
that taken on the American side should affect the American Fall alone, 
it would practically leave it dry; but it seems probable that only a 
part of this diversion will be at the expense of the American Fall. 

Exactly what portion that will be can not be stated with precision, 
but from a study of the channels and reefs, so far as they are known, 
p N F— 06 18 



270 PRESERVATION OF NIAGARA FALLS. 

a reasonable estimate is that the water would come from the two arms 
in about the proportion of one-sixth from the American Fall and live- 
sixths from the Horseshoe Fall. Exactly what form the chanoes in 
the two cataracts will take, whether they will be made narrower, or 
be broken up into a greater number of streams, or simply be reduced 
in volume, retaining in general their present form, can not now be 
foretold, for the reason that there is no accurate knowledge of the 
form of and depth of water on the crests. If 60,900 cubic feet per 
second be diverted, the loss will be important, but if the diversion be 
limited to this amount, or reduced, as hereafter indicated, it may not 
prove disastrous. This can not be definitely determined until the 
works now under construction have been completed and put in opera- 
tion. When that happens, if it be found that the falls have not suf- 
fered serious damage, as a scenic spectacle, it does not follow that 
additional water may be diverted with impunity. Additional diversion 
would be an experiment even more dangerous than that now being 
tried, and in our opinion should not be permitted. 

27. In return for the impairment of the falls thus far authorized the 
State of New York will receive practically nothing for the 342,000 
horsepower authorized on that side, and the Queen Victoria Niagara 
Falls Park will receive an annual rental of $270,000, or an average of 
65 cents per horsepower for the 415,000 horsepower authorized on the 
Canadian side. These figures do not include the 8,000 horsepower 
being developed by the electrical railway nor the power developed by 
the Hamilton Compan}' with water from the Welland Canal. 

28. If all the water and all the head from the top of the upper rapids 
to the foot of the falls could be utilized, there would result over 4,000,000 
mechanical horsepower. Probably space could be found, if desired, for 
works which would utilize about half of this, or, say, 2,000,000 horse- 
power, or possibly more. As they could not utilize all the head, they 
would use much more than half the water. It will require time to cre- 
ate a market for all this power, but it is reasonably certain that it will 
in due season be found if the development of the power itself is to go 
on unchecked. The difference in cost in favor of falling water over 
any other method of developing power is so great that all other meth- 
ods are sure to be abandoned where sufficient water power is available. 
The difference at Niagara Falls is probably not less than $15 or $20 per 
annum per horsepower. The cost of transmission to distant points 
increases with the distance, and finally becomes so great as to be 
unprofitable; but electrical engineers are engaged in improving the 
methods and reducing the cost. An average difference of cost for each 
horsepower can not now be given with any close degree of approxima- 
tion, but the difference, whatever it is, is a perpetual annual saving, 
which, if capitalized, will show that the commercial value of the power 
at Niagara Falls is very great and is to be measured by the hundred 
millions of dollars. 

29. Whether this commercial asset shall be utilized to such an extent 
as to seriously impair the majesty and scenic beauty of the falls depends 
upon the public will. In our opinion the commercial advantages of 
a large increase in development of power will not compensate for the 
great loss to the world of the inspiration, aesthetic education, andoppor- 
tunitv for recreation and elevating pleasure which the mighty cataract 
affords. The direct advantages to the public from revenue is nothing 



PRESERVATION" OF NIAGARA FALLS. 271 

on the New York side of the river, and comparatively slight on the 
Canadian side. There is of course an indirect advantage due to added 
taxable wealth and reduction in the cost of power, but these advan- 
tages are, in our opinion, slight in comparison with those which spring 
from the preservation of the beaut>^ and majesty of the falls in their 
natural condition. Over 800,000 people visit the falls annually, deriv- 
ing pleasure and inspiration from them. The nations of the world 
have alwa^^s recognized the great value of parks and reservations, and 
throughout the civilized world the}' have preserved places of natural 
grandeur and beauty and furnished parks, artiticially beautified, for 
rest, education, and the elevation of their people. An illustration may 
be given in the case of the cit}^ of New York, one of many hundreds. 
There the municipality has acquired, in Central Park, property which 
is estimated to be worth ^225,000,000, and has spent millions upon its 
improvement and ornamentation. The United States Government has 
reserved lands of striking picturesqueness, grandeur, and interest, 
regardless of their value. These illustrations would seem to prove con- 
clusivel}^ that the people are not inclined to offset mere commercial 
values against the intangible but none the less great advantages found 
in the preservation of the great works of nature. 

30. It is probably not expedient to attempt the recovery of the rights 
granted to companies which have taken full advantage of them. In 
the case of the Niagara Falls Power Company, on the American side, 
the franchise authorizes it to develop 200,000 horsepower. It has con- 
structed works having about half that capacity, but has not begun the 
construction of the additional works, and we believe has no present 
intention of doing so. In the case of the Ontario Power Company, on 
the Canadian side, the construction of works under the agreement of 
April 11, 1900, has been indefinitely postponed. The authority for 
the additional works in both these cases could probably be withdrawn 
without inflicting an unreasonable hardship. All franchises of which 
advantage has not been taken should be extinguished. 

31. The following is a summary" of the foregoing statement of facts: 
(a) The glory of Niagara Falls lies in the volume of its water rather 

than in its height, or in the suri'ounding scenery. 

(h) Works are now authorized and partially completed at the falls 
which will divert from the Niagara River above the falls about 27 per 
cent of the average discharge, and about 3o per cent of the low-water 
discharge, which is more than double the quantity now flowing over 
the American Fall. In addition to this, water naturally tributary to 
the Niagara River is being diverted through the Chicago drainage 
canal, and for power in addition to navigation purposes through the 
Erie and the Welland canals. 

((?) The efl'ect of this withdrawal of water is to injure both the 
American and the Horseshoe falls in uearh' equal proportions. While 
the injury will be perceptible, it may not be destructive or disastrous. 

(d) Improvements in the transmission of electric power and increased 
demand will make a market for all the power which can be developed 
at Niagara Falls, and will cause a destruction of the falls as a scenic 
spectacle if the development be allowed to go on unchecked. 

(<?) Charters have been granted to corporations which propose to 
divert additional amounts in quantities not now limited. 

(y) The sums of money invested, or being invested, in tfie works now 
in operation or under construction, and in the industries dependent upon 



272 PRESERVATION OF NIAGARA FALLS. 

them, amount to many millions of dollars. It is probably not expedient 
to attempt the withdrawal of the rights thus utilized. 

{g) The commercial value of the water power at Niagara Falls is 
very great, but if compared with values set aside by wealthy communi- 
ties elsewhere for park purposes this value is not too great to be 
devoted to similar purposes. The place is visited annually bv about 
800,000 people. 

32. If the falls are to be preserved it must be by mutual agreement 
between the two countries. As a step in that direction we recommend 
that legislation be enacted which shall contain the following provi- 
sions, viz: 

(a) The Secretary of War to be authorized to grant permits for the 
diversion of 28,500 cubic feet per second, and no more, from the 
waters naturall}^ tributary to Niagara Falls, distributed as follows: 

Cubic feet. 

Niagara Falls Hydraulic Power and Manufacturing Company 9, 500 

Niagara Falls Power Company 8, 600 

Erie Canal or its tenants (in addition to lock service) 400 

Chicago drainage canal 10, 000 

{h) All other diversion of water which is naturally tributary to 
Niagara Falls to be prohibited, except such as may be required for 
domestic use or for the service of locks in navigation canals. 

(c) Suitable penalties for violation of the law to be prescribed. 

(d) The foregoing prohibition to remain in force two years, and 
then to become the permanent law of the land, if, in the meantime, the 
Canadian government shall have enacted legislation prohibiting the 
diversion of water which is naturally ti-ibutary to Niagara Falls, in 
excess of 36,000 cubic feet per second, not including the amounts 
required for domestic use or for the service of locks in navigation canals. 
It is assumed, however, that an understanding upon this subject would 
be reached by treaty. 

33. The object of such legislation would be to put a stop to the fur- 
ther depletion of the falls, and at the same time inflict the least possi- 
ble injury upon the important interests now dependent upon this water 
power. The amount to be diverted on the Canadian side has been fixed 
with a view to allowing to the companies on that side the amounts for 
which they now have works under construction, which are: 

Cubic feet. 

Canadian Niagara Power Companj- 9, 500 

Ontario Power Company 12, 000 

Electrical Develojnnent Comjjany 11, 200 

Niagara Falls Park Railway Company 1, 500 

Welland Canal or its tenants (in addition to lock service) 1, 800 

34. One of the effects of such legislation would be to give to Canada 
the advantage of diverting 7,500 cubic feet per second more than is 
diverted in the United States. The advantage is more apparent than 
real, since the power generated on the Canadian side will to a large 
extent be transmitted to and used in the United States. In the nego- 
tiation of a treaty, however, the point should be considered. 

35. The su))stance of this report was submitted to our Canadian col- 
leagues before the passage of the joint resolution, with a view to uniting 
in a joint report under the general law providing for the Commission. 
Thei-e was a substantial agreement in the statement of facts, and such 
diflorences as developed with respect to the recommendations which 
ought to be made did not seem insuperable, but our colleagues desired 



PRESERVATlOISr OF NIAGARA FALLS, 



273 



time for further consideration. We have-no doubt of their sympa- 
thetic interest in carrying out that part of the instructions contained 
in the resolution which requires us "to exert in conjunction with the 
members of said Commission representing the Dominion of Canada, if 
practicable, all possible efi'orts for the preservation of ISiagara Falls in 
their natural condition." 

Very respectfully, O, H. Ernst, 

Colonel^ Corps of Engineers^ Chairman, 
George Clinton, 

Metnher. 
Geo. Y. Wisner, 
Member^ American Section, 
The Secretary of War, 

Washington^ D. G. 



Appendix A. 



State op New York., 
Attorney-General's Office, 

Alhanij, A'oceinber 16, 1895. 

Dear Sir: Sometime ago the question of the right of tlie Niagara Falls Hydraulic 
Power and Manufacturing Company to enlarge the capacity of their canal, by which 
a portion of the water of the Niagara River is diverted for manufacturing purposes, 
was submitted to me for examination by you. The question is one involving great 
interests, not only to the corporation referred to, but to the State itself, and I have 
therefore considered it with a great deal of care before venturing to express an 
opinion. 

The facts in the case may be briefly stated. The canal in question was originally 
constructed in the year 1859. Its dimensions were 70 feet wide by 14 feet deep. 
The inlet is at Tort Day, about 1 mile above the falls, and it runs through a strip of 
land 100 feet wide to the mills on the bank of the river below the falls, where the 
waters, after supplying power to various industries, are discharged into the river. 

About the year 1878 the title to the land in the 100-foot strip, as I am informed by 
Mr. Schoelkopf, of Niagara Falls, was acquired by the present owners, since which 
time the canal has been in active operation, and has supplied power to mills of a 
sufficient capacity to em}iloy a large number of hands, residents of the city of Niagara 
Falls, and whose continued prosperity, to a very large degree, is dependent upon the 
operation of the mills in which they are employed. Sometime after the acquisi- 
tion of title to the strip of land by the present owners they made application to the 
land connnissioners of the State of ^2W York for a grant of land under water adjoin- 
ing the inlet to the canal. 

In the papers submitted on that application it was stated to be the intention of the 
owners to increase the capacity of the canal, and thereby increase its production of 
horsepower. The grant was made by the commissioners with the condition that no 
structures were to be built upon the granted land without the consent of the Niagara 
Reservation Commission. Thereafter application was made to the reservation conj- 
mission for leave to erect cribs on the land under water, the purpose of which was to 
prevent the flow of ice and other refuse into the canal, to the detriment of the inter- 
ests of the Niagara Falls Hydraulic Power and JManufacturing Company. 

The capacity of the canal at that time, if I am correctly informed, was 200,000 
cubic feet per minute. No objection was made (at least publicly) to this diversion of 
the waters of the river at that time. Since then, however, various grants of privileges 
by the legislature of the State have been given to several corptirations to divert the 
waters of the Niagara River for power purposes. In consequence of these grants 
apprehension has been created as to the probable effect upon the flow of water over 
the falls, and your commission, actuated by commendable zeal to protect the great 
natural beauty of the reservation, have determined that further encroachments upon 
the stream shall be prevented, if possible. 

The law under which your board was created (chap. 336, Laws of 1883) states that 
the object of the creation of the commission was to preserve the scenery of the Falls 
of Niagara. It provides for the condemnation of the lands to be selected l)y the 
commission, and for the compensation to be paid to the owners of the property con- 



274 PRESERVATION OF NIAGARA FALLS. 

(lemned. In carrying out the provisions of the law several million dollars have been 
expended by the State of New York, which will be converted into a mere waste of 
public moneys if the flow of water over these falls is to be seriously diminished. 

While this is, of course, a very serious consideration, I have not permitted myself 
to lose sight of the importance to the industries dependent upon the maintenance of 
the canal for their power, which action on the part of the State authorities will have. 

It is a very grave duty to be compelled to pass upon public questions wherein such 
great private interests are concerned. Nevertheless, it is one which I see no way to 
escape, and, while from certain considerations I would be pleased to arrive at a dif- 
ferent conclusion, I am compelled to hold, from my examination of the law on the 
subject, that the Niagara Falls Hydraulic Power and Manufacturing Coni])any may 
be restrained from increasing the capacity of the canal. It is only fair, however, 
that my reasons for this conclusion should be stated. They are as follows: 

The Niagara Kiver is a public navigable stream, to the bed of which, and the water 
flowing over it, the State and not the riparian owner has title. 

It would be a waste of time to attempt to show why this proposition is correct. It 
is sufficient to say that it has been amply supported by judicial decisions and is now 
the established law. 

111. C. R. K. Co. V. 111. (146 U. S., 387). 

Smith V. Rochester (92 N. Y., 479). 

Matter of St. Ke.servation (16 Abb. N. C, 395). 

The sole question, therefore, for determination is, "Can an owner of the soil adjoin- 
ing a navigable stream divert the water for private manufacturing purposes without 
the consent of the State?" Let us examine it. 

By the term "navigable," it must be remembered, is not meant "capable of being 
navigated." As used in this discussion, "navigable stream" means one which is 
navigable in the legal sense. Rivers may be navigable in fact but not in law, or they 
may be navigable in law but only in part navigable in fact. A mere local interrup- 
tion of actual navigability, therefore, will not change the character of a stream in its 
legal aspect. 

The river being navigable, in the legal sense, the title to the bed of the stream and 
to the water flowing over it is in the State, at least to the boundary line between the 
State and Canada. 

People?;. Appraisers (33 N. Y., 464). 

Grill V. Rome (47 How. Pr., 398). 

Morgan v. King (35 N. Y., 454). 

People?'. Tibbetts (19 N. Y., 523). 
. Ex parte Jennings (6 Cow., 518). 

Therefore, leaving out of view for the present the grant of land under water to the 
Hydraulic Power and Manufacturing Company, the State could unquestionably 
deprive the corporation of all use of the waters of the river for power purposes by 
devoting the stream to other ])ublic use. 

Smith V. Rochester (92 N. Y. ). 

Whether or not that has been done by the laws establishing the Niagara reserva- 
tion I will discuss hereafter. I prefer at this point to consider the abstract question 
of the right of an owner of land adjoining a navigable stream to divert a considera- 
ble portion of the waters for manufacturing purposes without a grant or prescriptive 
right. 

Nuisances may always be abated by action in the name of the aggrieved party. 
Public nuisances include any encroachment upon highways or navigable streams, and 
it is not an essential characteristic of the encroachment upon the stream that it should 
be an actual hindrance to navigation. 

Wood on Nuisances, 2d ed., sees. 478-480, and cases cited. 

The diversion of water from a public stream for any other than domestic purposes 
is a nuisance, and therefore may be abated at the suit of the Attorney-General. 

Philadelphia V. Gelmartin (71 Penn. St., 140). 

The Niagara Falls Hydraulic Power and Manufacturing Company is organized 
. under the act of 1875, chapter 611. Its objects are declared to be the development 
of the hydraulic canal in Niagara Falls, and the establishment and conducting of 
various manufacturing interests. Under its charter it is not only supplying its own 
mills but is furnishing other industries with power for a consideration. So far as the 
latter fact is concerned, certainly no question can be raised as to the rights of a 
riparian owner to the use of water for his own benefit. I assume the fact that the 
capacity of the canal at the outset was sufficient for all ths^ purposes of the power 
company, and that the increased capacity is desired for the purpose of enabling the 
corporation to derive a revenue from its sale of power to others. I have no hesita- 



PRESERVATION OF NIAGARA FALLS. 275 

tion in declaring this to be unlawful. A nonriparian owner is not entitled to any 
benefits of a stream other than those enjoyed in common by the public, and a riparian 
owner at the most is entitled only to personal benefits derivable from use devoted 
to personal purposes solely. They do not include the transmission of power to prop- 
erty located upon premises that may be far removed from the lands of the riparian 
owner. 

The case last cited was an action brought by the owner of a boat which had been 
prevented from navigating the Schuylkill, by reason of the diversion of the waters 
of that stream by the city of Philadelphia for domestic or other purposes. The court 
in its opinion says: 

" In deciding upon the question of illegality in drawing off the water from the 
navigation, we are carried beyond its use for power, to inquire into the character of 
the consumption claimed as an overruling necessity. We have already seen that the 
city is a large vendor of water from which she is deriving revenue, for all the pur- 
poses of the arts, manufacturing, business, and pleasure. These uses are not domes- 
tic, that is, such as are for the preservation of the life and health of the population 
and their creatures, but are simply utilitarian or business uses, and far exceed those 
needed for domestic purposes. And even as to those termed domestic, a distinction 
must be noted between the use proper and that which is lavishly expended in pave- 
ment washing, baths, etc. It is perfectly obvious, therefore, that the city drew off 
water not only for driving and lifting power, but for a consumption far beyond any 
imperious necessity, and for purposes wholly subordinate to the right of navigation. 
She chose to prefer the pecuniary interests of her citizens, and doing an injury 
thereby she must make compensation to the injured parties. I mean not by these 
remarks to draw any comparison between the importance of the use of the water 
for the great purposes of industry, wealth, and cleanliness of a city so populous as 
Philadelphia, and the use of it for navigation during a few days of drought. The 
question for us is that of legal right, not comparative weight. Such important inter- 
ests as those of the city are not likely to lead to the substitution of might for right; 
yet, they are not of that imperious necessity which justifies might, and changes 
wrong into right. Administrators of the law, we can not bend or break the law 
before a large interest, more than we can before one that is small. The doctrine of 
imperious necessity is not in this case." 

It is historical that the Niagara Eiver at Port Day has been navigated by vessels 
of large burden, and, indeed, to a point some distance below. The erection of cribs 
to divert ice and other refuse from the canal inlet is, therefore, an actual obstruction 
to navigation, and it is not necessary to show present use of the river at this point 
for navigation purposes. Once a highway, always a highway, is true of navigable 
streams. (See Yolo v. Sacramento, 38 Cal., 193; Wood on Nuisances, 478, 485.) 

Ex parte Jenkins (6 Cowen, 518) is also of interest on this point. That was a pro- 
ceeding brought in mandamus to compel commissioners appointed to appraise dam- 
ages occasioned by the diversion of the stream of the Chittenango for the purposes of 
the Erie Canal, which diversion prevented the use of the water of the stream by 
riparian owners for power purposes in operating mills. The court, in awarding 
mandamus, says: 

"The objection is contained in the affidavits of Mr. Seymour that, in point of 
fact, the State has not parted with the land upon which the Chittenango passes, at 
the places claimed, but had bounded purchases of land on the margin of the stream, 
so that, as he believes (and he believes the other appraisers were satisfied of the fact 
being so), the State was still the owner of the land covered by the waters of the 
stream, and had not parted with it or contracted to part with it, to any person what- 
ever, or authorized the use of the water for hydraulic purposes at the places in ques- 
tion. If the construction set up by the commissioners be the true one, if the State owns 
the land covered by the water, it is cl^ar that, though the relators may be entitled 
to the use of the water flowing by and touching upon them for all ordinary purposes, 
yet they can not build mills upon and raise the water of the stream. They are 
trespassers, and the State may claim not only the waters, but the mills themselves, 
so far as they encroach upon the stream." 

I will not consider the effect of the grant by the land commissioners of lands under 
water to the corporation operating the canal. 

The powers of the land commissioners at the time the grant was made were con- 
ferred by section 67, page 633, volume 1, eighth edition, Eevised Statutes. It reads: 

"The commissioners of the land office shall have power to grant, in perpetuity or 
otherwise, so much of the lands under the waters of navigable rivers or lakes as they 
shall deem necessary to promote the commerce of this State, or proper for the pur- 
pose of beneficial enjoyment of the same by the adjacent owner." 



276 



PRESERVATION OF NIAGARA FALLS. 



The court of appeals, in passing upon the character of such grant, says: "In every 
such grant there was an implied reservation of the public right, and so far as it is 
assumed to interfere with it, or to confer the right to impede or obstruct navigation, 
or to make an exclusive appropriation of the use of navigable waters, the grant was 
void." 

Again: "Public grants to individuals under which rights are claimed in impair- 
ment of puVjlic interests, are construed strictly against the grantee, for it is reason- 
able to suppose that if they were intended to have this operation, the intention 
would have been expressed in plain and explicit language." 

People r. N. Y. & Staten Island P'erry Co. (68 N. Y., 71). 

I have been unable to find any language in the grant to the Niagara Falls H\-draulic 
Power and Manufacturing Company which can be construed as authorizing them to 
divert the waters of the Niagara River. Applying the principles in the case last 
cited, it is certain that that grant can afford no defense to an action brought to restrain 
the unlawful taking of the waters. 

It now remains to determine whether or not the waters of the Niagara River have 
been devoted by the legislature to a public u.«e to an extent that will prevent the 
diversion of the water above the falls for power purposes. The objects and purposes 
of the statutes creating the Niagara reservation were to preserve a great natural 
waterfall and its environments for the enjoyment of the people of this State. In 
fact, the statutes themselves declare that the commissioners shall take all proper 
steps to restore and afterwards to preserve the scenery as nearly in its natural state as 
possible. 

The flow of water over the falls is an essential element in the preservation of the 
scenery, and if it can be shown (as I am informed it can) to be the fact that the 
diversion of the large quantities of water through the canal of the Niagara Falls 
Hydraulic Power and Manufacturing Company has a diminishing effect upon the 
flow of the water over the falls, the diversion is a nuisance and can be restrained. 

All of which is respectfully submitted. 

T. E. Hancock, Attorney- General. 

Hon. Andrew H. Green, 

President Niagara Reservation Commission, New York City. 



Appendix B. 



List of dependent industries of the Niagara Falls Hydraulic Power and M'^.nufacluring 

Company. 



Electric light for street and store service. 
Pittsburg Reduction Company. 
Niagara Falls Brewing'Company. 
Wm. A. Rogers (Limited.) 
Niagara Gorge Railroad. 
Youngstown and Lewiston Railroad. 
National Electrolytic Company. 
Acker Process Company. 
Walker Manufacturing Company. 



Cliff Paper Company. 
Cataract City Milling Company. 
Pettebone-Cataract Paper Company. 
Oneida Community Company. 
City Waterworks. 
Niagara Falls Milling Company. 
Carter-Crum Company. 
Central Machine Company. 



PRESERVATION OF NIAGARA FALLS. 



271 



Appendix C. 

The Niagara Falls Power Company — List of users. 



Maximum 
power. 



Transmis 
sion dis- 
tance. 



NIAGARA FALLS, X. Y. 



The Pittsburg Reduction Co 

The t'arborundum Co 

Union Carbide Co 

Niagara Electro-Chemical Co 

Niagara Falls Lighting Co 

International Railway Co 

The Niagara Falls Water Works Co. (hydraulic power) 

International Paper Co. (hydraulic power) 

Castner Electrolytic Alkali Co 

Oldbury Electro-Chemical ( o 

International Achcson Graphite Co 

Acely vone Manufacturing Co 

Roberts Chemical Co 

Francis Hook and Eye and Fastener Co 

Norton Emery Wheel Co 

The Natural Food Co 

Ramapo Iron Works 

By-Products Paper Co 

Composite Board Co 

Niagara Research Laboratories 

Lockport Paper Co 

Cataract Consumers Brewery 

Development and Funding Co 

Niagara Tachometer and Instrument Co 

Ozone Vanillin Co 

Phosphorus Compounds Co 

Acheson Siloxicon Articles Co 

Niagara River Manufacturing Co 



NIAGARA FALLS, ONTARIO. 



A. C. Douglass, contractor 

Niagara, St. Catharines and Toronto Rwy. . . 

Lighting Co 

Canadian Shredded Wheat Co. (Limited) ... 

International Acheson Graphite Co 

Larkin, Sangster and Marshall, contractors. 

Loretto Convent 

Monastery of Mount Carmel 



TONAWANDA. 



International Railway Co 

Tonawanda Board and Paper Co . 

Buffalo Bolt Co 

Philip Houck Milling Co 

F. J. AUiger Co 

-Adamite Abrasive Co 

Orient Manufacturing Co 

Felton School 



LOCKPORT. 



International Railway Co . 



International Railway Co . 



Buffalo General Electric Co 

Great Northern ElevattT 

filectric Grain Elevator 

Buffalo Elevating Co 

Buffalo Cereal Co 

American Brake Shoe and Foundry Co . 

Charles G. Curtiss Co 

McKinnon Dash Co , 

The G vpsum Products Co 

The General Railwav Signal Co , 

Schoell kopf & Co , 

The National Battery Co 

International Railway Co . . .'. 

Great Eastern Elevator , 

Buffalo Dry Dock Co 

Edward Elsworth & Co. (H.O.Mills).... 

Snow Steam Pump Works , 

The Jacob Dold Packing Co 

The John Kam Malting Co 



Horsepower. 
8.000 
5,000 
17,000 
3,000 
1,000 
1,500 
300 
8,000 
8,500 
2,500 
2, COO 
50 
500 
15 
1,500 
1,500 
500 
500 
200 
500 
500 
140 
750 
15 
125 
50 
50 
800 



400 

500 

500 

75 

200 

2 

40 

35 



1,500 

1,200 

160 

142 

107 

60 

20 

22 



1,000 



1,000 



6,000 
900 
200 
950 
375 
40 
125 
100 



900 
133 
150 
150 
100 
225 



Miles. 

0.4ft 

.33 

2.00 

.75 



278 



PRESERVATION OF NIAGARA FALLS. 



The Niagara Falls Power Company — List of users — Continued. 



BUFFALO— continued. 

Pratt & Letchworth Co 

The Wood <fc Brooks Co ; 

Sidney Shepard & Co 

Iron Elevator and Transfer Co 

W. VV. Oliver Manufacturing Co 

New York Car Wheel Co 

The United States Rubber Reclaiming Works 

The American Radiator Co. (Bond plant) 

Barcalo Manufacturing Co 

American Agricultural Chemical Co 

Acme Steel and Malleable Iron Works 

Cumpson-Prentiss Coffee Co 

J. I. Prentiss & Co 

Schoellkopf , Hartford &. Hanna Co 

The U.S. llameCo 

Knowlton Warehouse Co 

Iroquois Brewing Co 

Faxon, Williams & Faxon (bakery) 

The Sherwood Manufacturing Co 

Duffy Silk Co 

American School Furniture Co.: 

Found ry 

Works 



Buffalo City Waterworks 

Duluth Superior Milling Co 

The Frontier Ice and Stone Co 

The New York Central and Hudson Kiver R. R. (shops) . 

The Erie R. R. Co. (shops) 

The General Chemical Co 

The Oswegatchie Manufacturing Co 

G. F. ZellerA S ns 

Buffalo Foundry Co 

H. O. Mills Annex 

The Jewett Refrigerator Co 

Buffalo Pitts Co.: 

Works 

Foundry 

Buffalo Brake Beam Co 

Buffalo Dental Manufacturing Co 

Keystone Manufacturing Co 

B. L. Ginsburg & Sons 

Buffalo Weaving and Belting Co 

H. W. Dopp Co 

Frontier Iron Works 

The Crosby Co 

Spencer Kellogg 

The Lake Erie Engineering Works 

John Schmitz 

The Battle Creek Breakfast Food Co , 

The Collins Baking Co 

George Urban Milling Co 

C. Kurtzmann & Co 

The Buffalo Gasoline Motor Co 

The Niagara Mill and Elevator Co , 

Pratt Ac Lambert 

The Delaware, Lackawanna and Western R. R. shops .. 

The N iagara Cordage Co , 

The U. S. Headlight Co 

H. Messersmith ( I^averack Building ) , 

The Buffalo Structural Steel Co 

The Wegner Machine Co 

J.N.Adam & Co 

The estate of Walter Cary (Genesee Hotel) 

The McLean Box Factory 

The George N.Pierce Co 

The American Malting Co 

The Buffalo Fertilizer Co 

The Buffalo Rubber Manufacturing Co 

The U.S. Cast Iron Pipe and Foundry Co 

The L. V. R. R. Co. shops 

The Buffalo Box Factory 

American Radiator Co. (Pierce plant) 

Rogers Plating and Foundry Co 

Fleming Warehouse Co 

H ew 1 tt Rubber Co 

C.&B. Transit Co 

The D. H.StollCo 

The Ontario Elevator 

L. M. Ericsson I'elephone Manufacturing Co 

Ine Niagara Malting Co 

The Buffalo Union Furnace Co 



Maximum 
power. 



Horsepower. 



100 
100 
165 
15 
200 
995 
200 



125 

50 
30 
30 



240 
255 
30 

187 



30 
20 
26 
33 
65 
10 
15 
60 
500 



50 
4.50 



20 
100 

10 
160 



40 
100 
30 
40 
100 
100 



Tranpmis- 
sion dis- 
tance. 



peeservation of niagaea falls. 279 

Appendix D. 

Statement concerning companies incorporated to take water from Lake Erie and Niagara 
River, but which have not as yet constructed works under these charters. 

AMERICAN SIDE. 

Lockport Water Supply Company. — Incorporated 1886. New York State. Empow- 
ered to supply water for manufacturing and other purposes to cities within the county 
of Niagara; to take water from the Niagara River between the mouth of Tonawanda 
Creek and the east line of lot No. 52 of the Mile Reserve, and to discharge water into 
Lake Ontario or into Eighteen Mile Creek. Work to be commenced by 189L No 
work done. 

Lewiston Water Supply Comjmny. — Incorporated 1888. New York State. Empow- 
ered to supply water to Lewiston and other towns in the township of Niagara and 
Lewiston for manufacturing or other purposes; to take water from the Niagara River 
between Cayuga Creek and the east line of lot 46, Mile Reserve; discharge water into 
Niagara River near the town of Lewiston. Work to be commenced by 1893. No 
work done. 

Buffalo and Niagara Power and Drainage Company. — Incorporated 1889. New 
York State. Empowered to -build and operate public raceway in connection with 
the Niagara River for water ])ower and other purposes; to take water from and dis- 
charge water into the Niagara River at such points as may be convenient. Work to 
be completed by 1894. No work done. 

Niagara County Irrigation and Water Supply Company. — Incorporated 1891. New 
York State. Empowered to build and operate public waterway from Niagara River 
between Cayuga Creek and lot 71 of Mile Reserve; to supply water to Lewiston and 
other villages in townships of Niagara, Lewiston, and Porter; to lease and sell water 
for manufacturing and other purposes; to take water from Niagara River between 
points specified and discharge into Niagara River near Lewiston or Porter. Work 
to be commenced by 1896. "This company claims to have done some work and to be 
proceeding with development. 

Niagara. Pniver and Berelopment Company, originally The Model Tovm Company. — 
Incorporated 1893. New York State. Further legislation 1894. Authorized to 
build a town and equip plants for all public utilities therein. Empowered to take 
water from Lake Erie or Niagara River for all purposes except for motive power for 
factories. May purchase or lease franchise of the Niagara County Irrigation and 
Water Supply Company. 

Niagara, Lockport and Ontario Power Company. — Incorporated 1894. Empowered 
to supply water and electricity to Lockport ^nd other cities in Niagara, Erie, and 
Orleans counties; to take water from the Niagara River between mouth of Tonawanda 
Creek and east line of lot 52 of Mile Reserve and discharge water into Lake Ontario 
or Eighteen Mile Creek. Work to be commenced by 1904. In 1904 failed to obtain 
legislation to perpetuate right to take water from Niagara River. Is now building 
works for distribution of electric energy. 



Appendix E. 

Statement concerning companies incorporated to take water from Lake Erie and Niagara 
River, but which have not as yet constructed works under these charters. 

CANADIAN SIDE. 

Ontario Power Company, originalh/ Canadian Poiver Company. — Incorporated 1887. 
Dominion Parliament. Other' legislation 1891, 1893, and 1899. Empowered to build 
a canal and hydraulic tunnel from Welland River, near junction of Niagara, to Niagara 
River south of the whirlpool, and to supply water, electricity, or other power. As 
this company is empowered to make two separate developments, one of which is well 
under way, and as the act of 1899 empowers it to extend and enlarge its works as 
demanded by business, there is apparently no limit as to the time when the second 
development may be commenced. 

Hamilton Cataract Power, Light and Traction Company, originally Cataract Power 
Company of Hamilton.— IncorporeLied 1889. Province of Ontario. Further legislation 
1904. Empowered to build and operate a canal and raceway from near Allanburg to 



280 PEESERVATION OF NIAGARA FALLS. 

the Welland River near Port Robinson as an extension of their canal from near 
Decews Falls. This company is said to lease from the Dominion Government water 
from the Lake Erie level of the Welland Canal. 

Jordan Light, Heat and Power Company, originally Hamilton and Lake Erie Poiver 
Company. — Incorporated 1895. Furtherlegislation 1898, 1903. Dominion Parliament. 
Empowered to build and operate water courne from Welland River between 12 and 
30 miles from Niagara River to a point on Jordan River, and may dredge Welland 
and Jordan rivers; to use the waters of Lake Erie and Niagara River in such quan- 
tity as may be necessary for their purposes; to supply water and electricity or other 
power. To be completed by 1911. 

Erie and Ontario Power Company. — Incorporated 1903. Dominion Parliament. 
Authorized to build and operate water course from Grand River or Lake Erie to Jor- 
dan River and Lake Ontario; to take waters of Lake Erie and to dredge Jordan 
River; to supply electric or other power and convey the same. To be completed 
1908. 

Niagara Welland Power Company, originally Welland Power and Supply Company.— 
Incorporated 1894. Further legislation 1891, 1899, 1903, and 1905. Dominion Par- 
liament. Empowered to build and operate canal from Welland River near Niagara 
River to near Thorold and to carry off surplus water to Lake Ontario; to supply 
power and to use canal for navigation. To be completed by 1910. 

North American Canal Company. — Incorporated 1893. Dominion Parliament. 
Authorized to build and operate canal from Lake Erie near Port Colborne to Lake 
Ontario near Port Dalhousie, or to Niagara River near Queenston; canal to be 20 feet 
deep and sufficient width for two of the largest vessels to pass at full speed. Author- 
ized to maintain a current of 3 miles per hour. To sell or lease water and hydraulic 
or other power. May dredge in the Welland and Niagara rivers. To be completed 
by 1903. 



PRESERVATION OF NIAGARA FALLS. 281 



Department of State, 

Washington^ March 19^ 1906. 
The President: 

In reply to your letter of the 15th instant, transmitting the resolu- 
tion of the Colonial Dames of America relative to the preservation of 
Niagara Falls, and stating your desire to be informed regarding the 
present status of the negotiations with Great Britain on the subject, 
I have the honor to inclose herewith copies of correspondence had to 
the present time, through the War Department, with the American 
section of the International Waterways Commission, 
liespectfully submitted. 

Elihu Root. 



Department of St\te, 
^ Washington, February 13^ 1906. 

Sir: Several months ago the State Department and the British 
ambassador took up the subject of a possible treaty between the United 
States and Great Britain relating to the use of the waters of the 
Niagara River and the preservation of the falls. 

On the 13th of November the ambassador transmitted to the Depart- 
ment a report of the Canadian privy council, approved November 
2, 1905, which stated that a report from the Canadian section of the 
Water Ways Commission stated that the Commission was studying 
the subject and expected to be able to "make a joint report to the 
Government of the United States and to the government of Canada 
before long, recommending the adoption of rules and regulations which 
would prevent in the future the destruction of Niagara Falls by the 
use of its waters b}^ manufacturers.-' 

In the report by the American section, made to the Secretary of War 
on December 1, 1905, occurs the following statement: 

" The Commission has made good progress in the collection of data bearing upon 
eome of these questions, particularly those relating to the use of water at Niagara 
Falls." 

On the 28th of October, 1905, the Commission appears to have 
adopted the following resolutions: 

Resolved, That this Commis.sion recommends to the Governments of the United 
States and Canada that such steps as they may regard as necessary be taken to pre- 
vent any corporate rights or franchises being granted or renewed by either Federal, 
State, or provincial authority for the use of the waters of the Niagara River for power 
or other purposes until this Commission is able to collect the information necessary 
to enable it to report fully upon the "conditions and uses" of those waters to the 
respective Governments ot" the United States and Canada. 

The negotiation relating to a treaty on this subject has been sus- 
pended awaiting the further report of the Commission, in accordance 
with the statements to which I have referred. There are many indi- 
cations of active public interest in this subject, and a joint resolution 
having in view the preservation of the falls, pending in the House of 
Representatives, has been favorabl}^ reported by the Comiuittee on 
Rivers and Harbors. The indications are that if an agreement can be 
reached between the two countries as to the action necessary to accom- 



282 PRESERVATION OF NIAGARA FALLS. 

plish the purpose, any legislation to giv^e the agreement effect on the 
part of the American authorities would receive favorable consideration 
at the present session of Congress and at the present session of the 
New 1 ork legislature. 

It seems desirable, therefore, to press forward the negotiation for 
such an agreement without any avoidable dela3^ May I ask 3^ou to 
ascertain whether the joint commission is not now prepared to make 
such a report upon the subject as may furnish a basis upon which the 
State Department and the ambassador may take up and proceed with 
the negotiation? 

I have the honor to be, sir, your obedient servant, 

Elihu Root. 

The Secretary of War. 



War Department, 

Washington^ February 19, 1906. 

Sir: I have the honor to acknowledge the receipt of your letter of 
13th instant, in which you call attention to the fact that negotiations 
for a possible treaty between Great Britain and tlie United States in 
regard to the use of waters of Niagara River and preservation of the 
falls are now suspended, awaiting a further report from the Interna- 
tional Waterways Commission is now prepared to make such report 
as may furnish a basis upon which the Department of State and the 
British ambassador may be able to proceed with the matter. 

Replying thereto I beg to inform you that the chairman of the 
American section of the International Waterways Commission, Col. 
O. H. Ernst, to whom your letter was referred, reports under date of 
17th instant as follows: 

A copy of this letter has been sent to the chairman of the Canadian section and 
also to the other members of the American section of the International Waterways 
Commission in order that they may be prepared to discuss and act upon the question 
referred to at their next meeting. 

It is expected that a meeting can be held during the week beginning February 26, 
when it is hoped and believed that the map of the locality which the Commission 
has had under construction will be entirely completed. 

The outcome of the meeting referred to b}" Colonel Ernst will be 
promptly conununicated to the Department of State. 
Very respectfully, 



The Secretary of State. 



Robert Shaw Oliver, 
Acting Secretary of War. 



Department of State, 

Washington, March 13, 1906. 
My Dear Mr. Secretary: I notice in the newspapers that the 
International ^^'aterways Commission has taken some action about the 
Niagara Falls matter. 

Have you received any report? If not, can 3011 get one from them? 
Very truly, yours, 

Elihu Root. 
lion. William H. Ta?t, 

Secretary of War. 



PRESERVATION OF NIAGARA FALLS. 283 



APPENDIX D. 

[Senate Document No. 434, Fifty-ninth Congress, first session.] 

MESSAGE 

FROM THE 

PRESIDENT OF THE UNITED STATES, 

TRANSMITTING 

A REPORT MADE TO THE SECRETARY OF WAR BY THE INTER- 
NATIONAL WATERWAYS COMMISSION, UNDER DATE OF MAY 
3, 1906, UPON THE PRESERVATION OF NIAGARA FALLS. 



May 7, 1906. — Read; referred to the Committee on Foreign Relations and ordered ta 

be printed/ 



To the Senate and House of Representatives: 

I transmit herewith, for the consideration of the Congress, a report 
made to the Secretary of War by the International Waterwa3"s Com- 
mission, under date of May 3, 1906, upon the preservation of Niagara 
Falls. 



Theodore Roosevelt. 



The White House, May 7, 1906. 



War Department, 

Washington., May k-., 1906. 
My Dear Mr. President: I beg to transmit herewith a report made 
to me by the International W^atervvays Commission of date May 3, 1906, 
for submission to Congress. 

Very sincerely, jours, Wm. H. Taft, 

Secretary of War. 
The President, 



Buffalo, N. Y., Ifay 3, 1906. 
The Secretary of War of the United States and 
The Minister of Public Works of Canada: 

The International Waterways Commission has the honor to submit 
the following report upon the preservation of Niagara Falls: 

The Commission has made a thorough investigation of the conditions 
existing at Niagara Falls, and the two sections have presented reports 



284 PRESERVATION OF NIAGARA FALLS. 

to their respective Governments setting forth these conditions, to which 
attention is invited. The following- views and recommendations are 
based upon a careful study of the facts and conditions set forth in these 
reports: 

1. In the opinion of the Commission it would be a sacrilege to destroy 
the scenic effect of Niagara Falls. 

2. While the Commission are not fully agreed as to the effect of 
diversions of water from Niagara Falls, all are of the opinion that 
more than 36,000 cubic feet per second on the Canadian side of the 
Niagara River or on the Niagara peninsula and 18,500 cubic feet per 
second on the American side of the Niagara River, including diversions 
for power purposes on the Erie Canal, can not be diverted without 
injury to Niagara Falls as a whole. 

3. The Conmiission therefore recommend that such diversions, 
exclusive of water required for domestic use or the service of locks in 
navigation canals, be limited on the Canadian side to 36,000 cubic feet 
per second and on the United States side to 18,500 cubic feet per sec- 
ond, and in addition thereto a diversion for sanitary purposes not to 
exceed 10,000 cubic feet per second be authorized for the Chicago 
Drainage Canal, and that a treat}^ or legislation be had limiting these 
diversions to the quantities mentioned. 

The effect of the diversion of water by the Chicago Drainage Canal 
upon the general navigation interests of the Great Lakes system will 
be considered in a separate report. 

The Canadian section, while assenting to the above conclusions, did 
so upon the understanding that in connection therewith should be 
expressed their view that any treatv or arrangement as to the preser- 
vation of Niagara Falls should be limited to the term of twentv-tive 
years, and should also establish the principles applicable to all diver- 
sions or uses of waters adjacent to the international boundary and of 
all streams which ffow across the boundary. 

The following principles are suggested; 

1. In all navigable waters the use for navigation purposes is of 
primary and paramount right. The Great Lakes system on the bound- 
ar}' between the United States and Canada, and ffnding its outlet by 
the St. Lawrence to the sea, should be maintained in its integrity. 

2. Permanent or complete diversions of navigable waters or their 
tributary streams should only be permitted for domestic purposes and 
for the use of locks in navigation canals. 

3. Diversions can be permitted of a temporary character where the 
water is taken and returned again, when such diversions do not inter- 
fere in any way with the interests of navigation. In such cases each 
countr}^ is to have a right to diversion in equal quantities. 

4. No obstruction or diversion shall be permitted in or upon any 
navigable water crossing the boundary, or in or from streams tributary 
thereto, which would injuriousl}- affect navigation in either country. 

5. Each country shall have the right of diversion for irrigation 
or extraordinary purposes in equal quantities of the waters of non- 
navigable streams crossing the international boundary. 

6. A permanent joint commission can deal much more satisfactorily 
with the settlement of all disputes arising as to the application of 
these principles, and should be appointed. 



PEESEEVATION OF NIAGAKA FALLS. 



285 



The American members are of opinion that the enunciation of prin- 
ciples to govern the making of a general treaty is not within the scope 
of their functions; moreover the jurisdiction of the American mem- 
bers is restricted to the Great Lakes system. 



Geo. C. Gibbons, 

Chairman. Canadian Section. 
W. F. King, 

Comwlssioner. 

LODIS COSTE, 

Commhslonefr. 
Thomas Cote, 

Secretary^ Canadian Section. 



O. H. Ernst, 

Colonel., Corps of Engineers., 
U. S. A., Chainnan, Amer- 
ican Section. 
George Clinton, 
Com m iss ioner. 
Geo. Y. Wisner, 

Commissioner. 
L. C. Sabin, 

Secretary., American Section. 



P N F — 06- 



-19 



286 PRESERVATION OF NIAGARA FALLS. 



APPENDIX E. 

[House Report No. 4654, Fifty-ninth Congress, first session.] 

Mr. Burton, of Ohio, from the Committee on Rivers and Harbors, 
submitted the following 

REPORT. 

[To accompany H. R. 18024.] 

The Committee on Rivers and Harbors, to whom was referred the 
bill (H. R. 18024) for the control and regulation of the waters of 
Niagara River, for the preservation of Niagara Falls, and for other 
purposes, beg leave to submit the following report recommending the 
amending thereof by striking out all after the enacting clause and 
inserting the following: 

That the diversion of water from Niagara River or its tributaries, in the State of 
New York, is hereby prohibited, except with the consent of the Secretary of War, as 
hereinafter authorized in section two of this act: Provided, That this prohibition 
shall not be interpreted as forbidding the diversion of the waters of the Great Lakes 
or of Niagara River for sanitary or domestic purposes or for navigation, the amount 
of which may be fixed from time to time by the Congress of the United States, or by 
the Secretary of War of the United States under its direction. 

Sec. 2. That the Secretary of War is hereby authorized to grant permits for the 
diversion of water in the United States from said Niagara River or its tributaries for 
the creation of power to individuals, companies, or corporations which are now 
actually producing power from the waters of said river, or its tributaries, in the State 
of New York, or I'rom the Erie Canal; also permits for the transmission of power 
from the Dominion of Canada into the United States, to companies legally authorized 
therefor, both for diversion and transmission, as hereinafter stated, but permits for 
diversion shall be issued only to the individuals, companies, or corporations as afore- 
said, and only to the amount now actually in use: Provided, That the said Secretary, 
subject to the provisions of section five of this act, is hereby authorized to grant 
revocalDle permits, from time to time, to such individuals, companies, or cor- 
porations, or their assigns, for the diversion of additional amounts of water from 
the said river or its tributaries 'to such amount, if any, as, in connection with 
the amount diverted on the Canadian side, shall not injure or interfere with the 
navigable capacity of said river, or its integrity and proper volume as a boundary 
stream, or the scenic grandeur of Niagara Falls; and that the quantity of electrical 
power which may by permits be allowed to be transmitted from the Dominion of 
Canada into the tJnited States, shall be one hundred and sixty thousand horsepower: 
Provided further, That the said Secretary, subject to the provisions of section five of 
this act, may issue revocable permits "for the transmission of additional electrical 
power so generated in Canada, but in no event shall the amount included in such 
permits, together with the said one hundred and sixty thousand horsepower and the 



PRESERVATIOlSr OF NTAGAEA FALLS. 287 

amount generated and used in Canada, exceed three hundred and fifty thousand 
horsepower: Provided ahvays,' That the provisions herein permitting diversions and 
fixing the aggregate horsepower herein permitted to be transmitted into the United 
States, as aforesaid, are intended as a limitation on the authority of the Secretary of 
War, and shall in nowise be construed as a direction to said Secretary to issue per- 
mits, and the Secretary of War shall make regulations preventing or limiting the 
diversion of water and the admission of electrical power as herein stated; and the 
permits for the transmission of electrical power issued by the Secretary of War may 
specify the persons, companies, or corporations by whom the same shall be transmit- 
ted, and the persons, companies, or corporations to whom the same shall be delivered. 

Sec. 3. That any person, company, or corporation diverting water from the said 
Niagara River or its tributaries, or transmitting electrical power into the United States 
from Canada, except as herein stated, or violating any of the provisions of this act, 
shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished 
by a fine not exceeding two thousand five hundred dollars nor less than five hundred 
dollars, or by imprisonment (in the case of a natural person) not exceeding one 
year, or by both such punishments, in the discretion of the court. And, further, 
the removal of any structures or parts of structures erected in violation of this act, or 
any construction incidental to or used for such diversion of water or transmission of 
power as is herein prohibited, may be enforced by the order of any circuit court 
exercising jurisdiction in any district in which the same may be located, and proper 
proceedings to this end may be instituted under the direction of the Attorney-General 
of the United States. 

Sec. 4. That the President of the United States is respectfully requested to open 
nes^otiations with the Government of Great Britain for the purpose of effectualh- pro- 
viding, by suitable treaty with said Government, for such regulation and control of 
the waters of Niagara River and its tributaries as will preserve the scenic grandeur of 
Niagara Falls and of the rapids in said river. 

Sec. 5. That the provisions of this act shall remain in force for three years from 
and after date of its passage, at the expiration of which time all permits granted here- 
under by the Secretary of War shall terminate unless sooner revoked, and the Secre- 
tary of War is hereby authorized to revoke any or all permits granted by him by 
authority of this act, and nothing herein contained shall be held to confirm, establish, 
or confer any rights heretofore claimed or exercised in the diversion of water or the 
transmission of power. 

Sec. 6. That for accomplishing the purposes detailed in this act the sum of fifty 
thousand dollars, or so much thereof as maj' be necessary, is hereby appropriated 
from any moneys in the Treasury not otherwise appropriated. 

Sec. 7. That the right to alter, amend, or repeal thisact is hereby expressly reserved. 

The question of Federal jurisdiction over Niag-ara River, a bound- 
ary stream between the United States and Canada, has not been con- 
sidered b}^ Congress until this session. President Koosevelt, in his 
message at the beginning of the session, recommended action for the 
preservation of Niagara Falls. In pursuance of this recommendation, 
a resolution was reported from this committee and adopted by Con- 
gress, calling on the members of the International Waterways Com- 
mission from the United States for a report upon conditions at the 
Falls and for the cooperation of the members from the United States, 
with the members from Canada, in the taking of feasible steps to pre- 
vent further depletion of the waters flowing over the cataract. This 
Commission of three members was created under the river and harbor 
act of June, 1902, for the purpose of acting with a similar Commis- 
sion to be appointed from Canada, in relation to the boundary waters 
between the United States and Canada, which belong to the Great 
Lakes and connecting waters. 

In pursuance of this resolution the members of this Commission 
from the United States made a valuable report with recommendations 
on the the 27th day of March, 1906. In this report there is an elabo- 
rate statement of conditions prevailing at the Falls, with figures show- 
ing the amount of diversion, present and prospective, on both sides of 
the river. It appears that numerous franchises have been granted by 
the State of New York for the diversion of water and the creation of 



288 PEESERVATION OF NIAGARA FALLS. 

power. Of these, however, only two of any, considerable importance 
have been acted upon. One is the Niagara Falls Power Company, the 
pioneer organization in the development of electricity from the waters 
of the river, and the other is the Niao-ara Falls Hydraulic Power and 
Manufacturing- Company, The total diversion of water by these two 
companies, which is authorized by statutes of the State of New York, 
amounts to 17,200 and 9,500 cubic feet, respectively; in all 26,700 
cubic feet, to be taken from the American side. The total amount at 
present utilized is about 12,600 cubic feet. 

On the Canadian side the diversion of a considerably larger amount 
of water has been authorized under franchises granted by the Province 
of Ontario or the Dominion of Canada. While the present amount 
which is utilized on the Canadian side is comparatively small, three 
companies have extensive works nearing completion, capable of divert- 
ing an amount in excess of 26,000 cubic feet, sufficient to produce not 
less than 350,000 horsepower. The committee regard the jurisdiction 
of the United States over Niagara River as unquestionable, because it 
is a navigable stream in the greater part of its length, and although 
the waters in some portions are not navigable by reason of falls and 
rapids the control of such portions is essential to its adequate mainte- 
nance for purposes of navigation. Jurisdiction is more especially 
manifest because it is a boundary stream. It is the duty and responsi- 
bility of any country to provide for the defense of its borders. By 
the Constitution of the United States Congress maj'^ provide for the 
common defense. 

Under these circumstances it is the undoubted right, as well as the 
duty of the law-making power, to exercise control over this stream, 
which forms the boundary line between the United States and Canada. 
Should Congress decide that in those portions where rapids exist or 
where navigation exists the water should flow in its present condition, 
without depletion or diversion, it would seem that no judicial or other 
authorit}^ could review its action in the premises. It is a matter of 
some surprise that the companies which have proceeded to divert the 
waters of the river under the authority of the State of New York 
have never appealed to Congress or to the Federal Government to 
confirm the authority granted by that State. It is thought best by 
the committee that the Federal authorit}^ should now be exerted, not 
merely for the preservation of the scenic grandeur of Niagara Falls, 
but for the maintenance of navigation and the proper control of the 
river as a boundary stream. Nevertheless it must be recognized that 
the companies which have obtained franchises from the State of New 
York, in view of the very large expenditures which they have made, 
have certain equities which must be respected. 

At the beginning of the development of water power at Niagara 
Falls no account seems to have been taken of the possible danger to 
the cataract. The diversion of water was commended as an industrial 
endeavor of material benefit to the country. While there are, no 
doubt, many who regret that this diversion was ever commenced, it is 
impossible to entirely ignore the development which has occurred 
without injustice to those who have undertaken it. At the same time, 
it is the opinion of this committee that these rights should be con- 
strued with strictness; that no permits should be issued b}^ the Federal 
Government for the diversion of water, either for that now in use or 
which may hereafter be used, except with the right of revocation. 



PKESERVATION OF NIAGARA FALLS. 289 

T!'ie final settlement of the question of the amount of water which 
ma}' be taken from Niagara River must necessarily be international in 
its nature and the result of diplomatic negotiations, to be embodied in 
a treaty. It is, however, very desirable, if not essential, that legisla- 
tion be now enacted to prevent the further depletion or diversion of 
the waters of the river and to furnish a basis for diplomatic action. 

In the bill presented a very large responsibility is imposed upon 
the Secretary of War. This course has been maturely considered and 
has seemed desirable, because the question of impairment of the scenic 
beauty of the cataract and of the interference with navigability or the 
integrity of Niagara River as a boundary stream is largely one of 
hydraulic engineering. It can not now be determined what quantity 
of water can be withdrawn without the impairment of the scenic gran- 
deur of Niagara Falls, nor can it be determined to what extent such 
diversion will interfere with navigability or the integrity of the stream 
as stated. It is expected that this authority will be exercised by the 
Secretary of War with strictness. The bill authorizes: 

1. The issuance of permits to individuals, companies, or corpora- 
tions already using water to the extent to which water is now being 
used. 

2. The issuance of further permits both for the diversion of water 
on the side of the United States and for the transmission of electricity 
created by water power from the Canadian side; this, however, in all 
cases, with the limitation that such permits shall not impair the scenic 
grandeur of Niagara Falls, the navigability of Niagara, or its integrity 
as a boundary stream. 

In this connection it may be stated that in order to exercise this 
jurisdiction in such a manner as to accomplish the object of the bill, it 
is necessary to give the Secretary of War such jurisdiction as will 
enable him to restrict the quantity to be brought from Canada. The 
works on the Canadian side have for the most part been constructed 
by capital of citizens of the United States and with the manifest inten- 
tion of transmitting power to be used in the United States. It would 
not be sufficient if the Secretar}" should take into account merelj^ the 
diversion on the American side, because those who were refused per- 
mits to establish works here might, after refusal, immediately proceed 
to the other side of the river with the intention either of utilizing 
power already provided there or creating power by further diversions. 

Section 4 of the bill requests the President of the United States to 
open negotiations with the Government of Great Britain for the pur- 
pose of effectually providing by suitable treaty with said Government 
for such regulations and control of the waters of Niagara River and 
its tributaries as will preserve the scenic grandeur of Niagara Falls 
and of the rapids of said river. It is hoped that such action may be 
taken by diplomatic negotiations as will bring an early settlement of 
the problem and secure the preservation of Niagara Falls and the 
proper regimen of the river both for navigation and as a frontier 
stream. 

All permits to be granted under the bill are by section 5 revocable 
within three years by the Secretary of War, and shall in any event 
terminate at the expiration of three years from and after the date of 
the passage of this act, the time limited for its operation. 

A report has been filed by the joint commission on international 
waterways, including both the members from the United States and 



290 PEESERVATION OF NIAGARA FALLS. 

those from Canada, in which the principle of equality in the aniount 
to be diverted on both sides by the United States and Canada is 
asserted. In the opinion of the committee this rule should be followed. 
At the present time, however, the preparation for diversion has been 
greater on the Canadian side. It is expected, however, that ultimately 
the diversions on either side will be equal, and that the Secretary of 
War will keep this principle in view. 

When amended as above set forth the committee recommend that 
the bill do pass. 



PEESERVATION OF NIAGARA FALLS. 291 



APPENDIX P. 

[Document No. 4. 59th Cong., 1st sess., Committee on Rivers and Earbors, House of 
Represetatives, U. S.] 

. INDUSTRIAL VALUE OF NIAGARA FALLS. 

General Electric Company, 
New York Office, 44 Broad Street, 

April 9, 1906. 
My Dear Sir: The object of this is to demonstrate the necessity of 
cheap power in the development of American industries, the impor- 
tant part which Niagara can play therein, and the enormous economic 
value of the power available from the falls. 

importance of power to manufacturing progress. 

The census returns of 1900 give the total power of steam generating- 
apparatus used for manufacturing purposes in the United States as 
8,761,083 horsepower. The total of gas or gasoline power was 
143,954 horsepower, making the total for generating plants consum- 
ing fuel 8,905,037 horsepower. 

The same report also states that the cost of fuel consumed by such 
plants during the year was $205,320,632, this without stating the quanti- 
ties of fuel consumed. 

However, it is well known that the cost of fuel is approximately 40 
per cent of the entire cost of developing steam power, so the total cost of 
producing the above amount of power was approximately $513,000,000, 
or $57 per horsepower. 

Approximately 78 per cent of all power used in manufacturing was 
steam, so this proportion of totals of employees, products, etc., is taken 
to reach the immediate following: 

The total value of products from steam production was $10,140, 115, 343. 
The items which entered into the cost of their production were: 

Materials $5,827,929,742 

Wages 1,710,336,771 

Miscellaneous 803,485,908 

Total 7,341,752,421 

In these items are of course included the cost of power as calculated 
above, i. e., $513,000,000. It is therefore seen that the item of power 
is approximately 7 per cent of the entire cost of production and that 
it is the equivalent of 30 per cent of the item of wages; or, calculating 
in another way, it is found that for every wage-earner in the steam- 
driven manufacturing establishment $122.55 is annually expened for 
power. 



292 



PRESERVATION OF NIAGARA FALLS. 



To illustrate the effect of a liberal and increasing- use of power upon 
manufacturing progress and production, the following tables are 
inserted: 

Relation of iwiver to manufacturing progress in the entire United States compiled from 

census reports. 



Year. 


Wage- 
earners. 


Horse- 
power 
used. 


Value of pro- 
ducts. 


Product per 
wage- 
eamer. 


Horse- 
powerper 
wage- 
earner. 


1S50 


957, 059 
1,311,246 
2, 053, 996 
2, 732, 595- 
4,251,613 
5, 308, 406 


? 

? 
2, 346, 142 
3,410,837 
5,954,655 
11,300,081 


$1,019,106,616 
1,885,861,676 
4,232,325,442 
5,369,579,191 
9, 372, 437, 283 

13, 004, 400, 143 


$1,067 
1,437 
2,030 
1,9!6 
2, 204 
2,450 


? 


1,S()0 


? 


1.S70 


1.19 


1880 


1.21 


1890 


1.40 


1900 


2. 15» 







Relations of poiver to manufactures in various countries of the world in the year 1900. 
[From article by the writer in Engineering Magazine, May, 1904.] 



Country. 



Wage- 
earners. 



Total 

horsepower 

used in 

manufac 

tures. 



Value of pro- 
ducts. 



Value of 

products 
per wage- 
earner. 



Horse- 
power 
per wage 
earner. 



United States 

United Kingdom 

Germany 

France 

Belgium 

Switzerland 

Austria-Hungary 

Russia 

Italy 

Norway 

Sweden 

Holland 

Spain 

Australia 

Japan (factories only) 
Canada 



5, 308, 400 

9,000,000 

10,000.000 

5, 000, 000 

1,550,000 

600, 000 

4, 700, 000 

4, 500, 000 

3, 600, 000 

200, 000 

490, 000 

400, 000 

1, 800, 000 

550, 000 

388, 298 

550, 000 



11,300,081 

3, 000, 000 

3, 400, 000 

1, 500, 000 

630, 000 

320, 131 

750, 000 

700, 000 

900, 000 

80, 000 

200, 000 

130, 000 

2,50,000 

460, 000 

84,216 

750, 000 



113,004, 

5, 000, 

4, 600. 

3, 4.50, 

720, 

300, 

2, 000, 

1, 9S0, 

1, 700, 

90, 

280. 

245, 

650, 

500, 

220, 

800, 



400, 143 
OUO, 000 
000, 000 
000, 000 
000, 000 
OOil, 000 
000, 000 
000. 0t)0 

000. uoo 

000, 000 
000, 000 
000, 000 
000, 000 
000, 000 
000, 000 
000, 000 



82, 450 
5."i6 
460 
090 
480 
500 
425 
440 
472 
450 
572 
5tO 
361 
900 
566 
1,455 



2.1& 
.33 
.34 
.30 
.42 
..54 
.16 
.15 
.25 
.4 
.41 
.29 
.15 
.80 
.22 

L36 



It is seen from a glance at the above table that America, with rates 
of wages more than double those paid in Europe, could not have 
reached its high rank as a manufacturing nation were it not for the 
large output per wage earner, which is secured by a liberal use of 
power, which means the use of labor-saving machinery. 

Relations of poioer to manufacturing progress in the State of New York, compiled from the 

census reports. 



Years. 



Wage- 
earners. 



Horse- 
]:>ower 
used. 



Value of prod- 
ucts. 



Value of 
pniduct 
per wage- 
earner. 



Horse- 
power 
per wage- 
earner. 



1850 
1860 
1870 
1880 
1890 
1900 



199, 349 
230,112 
3.51,800 
531,. 533 
752, 066 
849, 056 



?) 
(?) 

334, 363 
454,143 
776, 820 
,181,369 



8237, 597, 249 
378, 870, 939 
785,194,6.51 
1,080,696,596 
1,711,. 577, 671 
2, 175, 726, 900 



$1, 2 12 
1,646 
2, 203 
2, 033 
2,270 
2,562 



(?) 
(?) 



0.95 

.85 

1.03 

1.39 



PKESERVATION OF NIAGARA FALLS. 



293 



Relations of poiver to manufacturing in certain States adjoining Nexo York in the year 1900 



All New England 

Pennsylvania 

Ohio 



Wage- 
earners. 



947, 645 
733, 834 
345, S69 



Horse- 
power 
used. 



1,871,798 

1,859,265 

850, GOO 



Value of prod- 
ucts. 



11,875,792,081 

1,834,790,860 

832, 438, 113 



Value of 
product 

per wage- 
earner. 



81,980 
2, 527 
2,469 



Horse- 
power 
per wage- 
earner. 



1.98 
2.6(5 
2.49 



Feeling that the importance of cheap power to our manufacturing 
indu.stries has been shown, it is desired to sav that the only methods 
for improving- present conditions in this respect are: 

First and most important. Utilizing every American water power 
to its fullest extent. 

Second. A more general location of manufactures close to sources 
of fuel supply. 

Third. The adoption of more highly economical, steam-driven power 
plants and more efficient methods of distributing and utilizing their 
energy. 

The enormous advantages which would accrue from the adoption of 
these last two suggestions will, however, be neutralized in a compara- 
tively few years if some effort is not made to preserve the coal supply 
of America. 

This feature is so important and has so great a bearing upon the 
question at issue it is considered proper to directly consider it herein. 

COAL SUPPLY. 

It would be unfair to place the responsibility for the rapidly increas- 
ing use of coal in the United States, which threatens the ultimate 
exhaustion of the supply, entireW upon the manufacturing industries, 
for its consumption for transportation and other purposes has increased 
even more rapidly than for manufacturing uses. Attention should, 
however, be called to the leaps and bounds with which American coal 
production is increasing, so that the importance may be realized of 
preserving the supply by so far as is practical utilizing water power 
for all industrial purposes. 

Comparison of manufacturing growtJi ivith coal output. 



Year. 


Total value of 
manufactures. 


Total hor.se- 
power em- 
ployed in man- 
ufacturing. 


Coal tonnage 
produced. 


1870 


84,232,325,442 
5, 369, 579, 191 


2,346,142 
3, 410, 837 


36,807 333 


1880 


71,481,-570 
141, 229, 513 


18S9 


1S90 


9, 372, 437, 283 
13, 004, 400, 143 


5, 954, 655 
11,300,081 


1900 




1902 


301,590,439 









In the report of the Geological Survey on coal production for 1902 
it is estimated that the total production of coal in the United States up 
to that date had been 4,860,000,000 tons. At the rate of output for 
that year, without allowing for increases, in a period of sixteen years 



294 PRESEKVATION OF NIAGARA FALLS. 

from that time as much coal will be produced as in all the history of 
American coal raining prior thereto, and if the present rate of increase 
continues about ten years will see this accomplished. It should be 
remembered in this connection that use of natural gas and petroleum 
during the past twenty years has avoided the use of many millions of 
tons of coal. 

Coal readily accessible naturally means low-priced fuel, and conse- 
quently cheap power. As coal becomes more and more ditijcult and 
expensive to mine its prices must constantl}' advance, and the cost of 
producing steam power will correspondingly increase. 

THE INDUSTPaAL VALUE OF NIAGARA. 

The report of the American Section of the International Waterways 
Commission in a brief paragraph concedes it to be hundreds of mil- 
lions of dollars. Who is legally entitled to this enormous value is 
beyond my province to discuss, but speaking broadly, from the stand- 
point of economics, it should not be lost to the industrial requirements 
of the North American continent. 

Subsequent calculations will be given herein to approximate the 
value of Niagara's power in the light of industrial experience up to 
the present, but before doing so it is desired to call your attention to 
a rapidly growing new class of industries which have attained their 
greatest development at Niagara, i. e., electro-chemical and electro- 
metallurgical products. 

While exact figures on power consumed by these at Niagara are not 
now available to the writer, I am not far from the facts in stating that 
one-half the power used on the American side of the river is by indus- 
tries of that character which were unknown commercially when the 
census of 1890 was taken. These are of the greatest importance to 
the arts and industrial progress and their commercial value great. 

Their development and that of equally important kindred industries 
is dependent upon cheap power which is utilized for nearly eveiy hour 
in the yeav. 

As previously shown herein, the average cost of producing steam 
power for manufacturing in 1890 was 157 per horsepow^er for the year, 
but probably the average time of its use was not over 10 hours per 
working day, or 3,000 hours during the year. Had it been developed 
for the 8,760 hours in the year, on the same basis of computation, the 
annual cost per horsepower would have been approximately $166. 

These industries at Niagara at most are not paying over $25 per 
horsepower for a continuous year's service of 8,760 hours and the 
rates will be very much less. With lower rates for such a service 
steel smelting by electric power would be an immediate possibility, as 
well as other industries but little less important. 

The writer knows from several years' contact with the. leading cap- 
tains of industry in German}-, especiallj^ with Doctor I^athenau, the 
most important factor in the electro-chemical industries of that coun- 
try, that Germany considers and fears Niagara and other great Ameri- 
can water powers as the one factor which will give America supremacy 
on electro-chemical, electro-metallurgical, and similar productions. 

Values of these conditions and possibilities are impossible to esti- 
mate, but their importance can not be questioned. 



PKESERVATION OF NIAGARA FALLS. 295 

The American section of the International Waterways Commission 
in its report has stated that the total power of Niagara is approxi- 
mately 4,000,000 horsepower, but owing to topographical and other 
natural obstacles it would be impracticable to develop over approxi- 
mately 2,000,000 horsepower. 

Specialist hydraulic engineers have considered it possible to develop 
approximately 3,000,000 horsepower from the Falls, but the Commis- 
sion's estimate of 2,000,000 horsepower will be taken as a basis for the 
following calculations. 

An extremist, in making calculations on' the value of Niagara's 
power, might consider that as it flows continuously 8,760 hours per 
year it would be proper to estimate as follows: 

The average cost per annual horsepower hour for continuously 
developing steam power as calculated from the Census report is $166. 
Deduct from this flgure $20, the Commission's maximum estimate on 
the yearly cost per horsepower for producing power at Niagara, a 
saving would be shown over steam of $144 per horsepower, or a total 
for 2,\)00,000 horsepower of $292,000,000. _ This capitalized at 5 per 
cent would give a prospective value to Niagara's power of $5,840,- 
000,000. 

The above calculation is of course unfair, as unquestionably it has 
cost the manufacturers of the United States too high a figure to pro- 
duce power by steam, and all of Niagara's power would not be used 
continuously; so the following calculation is made based upon good 
engineering practice on steam power production and in accordance 
with usual commercial conditions. 

A consumption of 4 pounds of coal per horsepower hour for 3,000 
hours per annum'would mean a yearly consumption per horsepower of 
12,000 pounds, or, say, 6 net tons, making a total for 2,000,000 horse- 
power of 12,000,000 tons. Estimating the average value of this fuel 
to be $2.50 per ton, it is seen that the saving efl'ected is $30,000,000. 
Considering this to represent 40 per cent of the cost for developing 
annually 2,000,000 horsepower by steam, the total for so doing is 
$75,000,000. Deducting from this the Commission's estimate of 
$30,000,000 as a fair cost for developing 2,000,000 horsepower per 
annum at Niagara the total saving over steam is shown to be 
$45,000,000 or $22.50 per horsepower. 

The total saving capitalized at 5 per cent would fix a value to the 
power available from the falls of $900,000,000, not including the addi- 
tional value of power which would be used for more than 3,000 hours 
per annum. 

There is also no doubt but what power can be developed at Niagara 
for not exceeding $12 per continuous annual horsepower, which 
would materially increase the valuation above the immediate fore- 
going estimate. 

Figures appeal only by comparison. 

The census returns for 1900 show that the entire value of all farm 
property in the State of New York was $1,069,723,895, and that the 
entire capital of the manufacturing establishments in the State was 
$1,651,210,220. 

Giving due consideration to the great scenic value of Niagara, might 
it not yet be pertinent to ask. If the people of the State and of the 
nation realize the commercial value of Niagara's power, would they be 



296 PRESEEVATIOJSr OF NIAGARA FALLS. 

willing to sacrifice for the preservation of the entire scenic effect 
their share in what is worth practically all the farms of the State and 
more than half the value of its entire manufacturing establishments? 

According to the report of the Geological Survey for 1902 the ccal 
production of Pennsvlvania for that year was 103,271,057 tons, valued 
at the mines at $121*832,539. 

While this product was, of course, a public necessity, nevertheless 
it reduced the value of the natural resources of the State. Yet its 
production and local utilization has defaced the landscape and marred 
the beaut}^ of some of the best of American scenery. Would it not, 
therefore, be as proper to agitate the abandonment of mining in these 
localities as to refrain from utilizing nature's gift of more than the 
equivalent of coal at Niagara? 

Canada's advantage. 

It maj' be presumptive to suggest that commercial motives have in 
any way actuated the agitation in Canada for the preservation of 
Niagara's scenic effect or that the Dominion desires to drive a shrewd 
commercial bargain in connection therewith. 

It is clearly apparent, however, that the power development on the 
Canadian side of the Niagara River is much greater than on the Ameri- 
can side. In fact, it is so great that many j^ears must elapse before it 
can all be utilized in Canada, and the present agitation there to pro- 
hibit its transmission to American soil or for the placing of an export 
duty thereon clearly demonstrates that its value is appreciated as a 
most important factor in building up Canadian industries. 

In almost all directions in Canada wdiere a reasonable distance of 
transmission from Niagara is reached the points beyond can be reached 
by electric transmission of power from other large water powers, so 
that practically the whole industrial belt of Canada has cheap power 
available. Consequently Canada would suffer but little if for the next 
fifty years it utilized no more Niagara power than that for which it 
has already provided. 

Despite this condition the American section of the International 
Waterways Commission has recommended in its report that Canada 
])e given the advantage of 17,500 cubic feet per second more water 
from Niagara than the United States, for in their estimate of water to 
be taken on the American side the}^ have included 10,000 cubic feet 
per second from Lake Michigan for the Chicago Drainage Canal, 
wdiich probabl}^ does not affect the flow of the Niagara River in the 
slightest degree. 

A cubic foot of water per second at Niagara represents approxi- 
mately 12 horsepower, so on a concession of 17,500 cubic feet more to 
Canada than is granted to America, Canada would be given the bene- 
fit of 210,000 horsepower, at a net value of $22.50 per horsepower, in 
accordance with our previous calculations, which would represent an 
annual concession to the Dominion of $4,725,000. 

To illustrate the Canadian's appreciation of water-power values it 
can be said that during the past seven years the capitalists of no country 
in the world have gone so extensively into the development of water 
powers outside of their own countries as those of Canada, they having 
promoted and financed large enterprises of this character for trans- 
mitting power to the City of Mexico, Sao Paulo, Brazil, Rio de 



PRESERVATION OF NIAGARA FALLS. 297 

Janeiro, and elsewhere, representing- capital issues to a total of prob- 
ably 1150,000,000, and to-day more securities of this character are 
dealt in on the stock exchanoes of Toronto and Montreal than in that 
of any other city in the world. 

In conclusion, it is desired to call attention to the public remarks of 
Lord Kelvin on his last visit to Canada, when he prognosticated that 
the Dominion would become the greatest manufacturing country of 
the world through its enormous waterfalls. 

With highest regards, 1 am, very sincerel}^, j^ours, 

"VA^Ai. J. Claek. 
Hon. T. E. Burton, _ 

Chairman Committee on Rivers and Harhors^ 

Houne of Representatives y ^Vashin(Jton, D, C. 



298 PEESERVATION OF NIAGARA FALLS. 



APPENDIX G. 

lIDocument No. 5. 59th Cong., 1st sess., Committee on Rivers and Harbors, House of 
Representatives, U. S.] 

The American Scenic and Historic Preservation Society, 

Tribune Building^ New York City^ May i, 1906. 
Hon. T. E. Burton, 

Chairman of Rivers and Sarhors^ 

House of Representatives^ Washington, D. C. 
Dear Sir: Henry E. Gregory, esq., counselor at law, a trustee of 
this society and former secretary and treasurer of the commissioners 
of the State reservation at Niao-ara, furnishes us with the following 
brief, which he permits us to send to you. It seems to cover some of 
the points which arose at the hearing- which 1 attended and may be of 
some assistance to 3'ou and j^our committee in deciding upon the bill 
for the preservation of Niagara Falls. 

Trusting that it may contribute in some way to the cause for which 
you are so ably working, I remain 
Yours, very truly, 

Edward Hagaman Hall, 

Secretary, 



Under the common law there were two classes ot rivers, navigable 
and nonnavigable. The former were also called public and the latter 
private. The broad distinction between the two classes was that in 
the former the tide ebbed and flowed, whereas in the latter it did not. 

It is unnecessary to state that the common-law rule which limited 
the navigability of a river by the ebb and flow of the tide does not 
obtain in this country, and that navigability in law is synonymous 
with navigability in fact. Cases both in the United States Supreme 
Court and in the New York courts will be cited so as to leave no doubt 
on this point. 

It is clear from the decisions that the Niagara, although a tideless 
river, and a river in which navigation is interrupted by rapids and the 
falls, is nevertheless a public and navigable river. 

It difl'ers from most other rivers in that it has no source in moun- 
tain, hill, or high ground, but is simply a stream connecting Lake Erie 
and Lake Ontario; or, perhaps, it would be better to describe it as a 
water course that carries the discharges of the four great lakes into 
the fifth. 

But it has another distinction. Through it runs the boundar}^ line 
that separates the United States from the Dominion of Canada. This 



PRESERVATION OP NIAGARA FALLS. 299 

fact and the fact that it is a navigable stream would seem to dispose 
of any doubt as to the jurisdiction of the Federal Government over 
its waters, either to prevent excessive diversions on the Canadian side, 
or to enter into relations with the Government of Great Britain in 
order to effect bv treaty or convention, as far as possible, the preser- 
vation of the Falls of Niagara. • 

By the decisions of the New York courts the Niagara must be 
regarded as a navigable river. 
The principal cases are — 

Kingman v. Sparrow, 12 Barb,, 201. 

Canal Appraisers v. People, 17 Wend., 507, 

In re Commrs, State Res'n at Niagara, 16 Abb,, N, C, 175. 

In re Commrs. State Res'n at Niagara, 37 Hun., 547. 
Others that ma}^ be consulted are — 

Canal Commrs. v. People, 5 Wend., 423. 

People V. Canal Commrs., 33 N. Y., 461; 
in which the cases are collated and the subject comprehensively treated 
b}^ Da vies, J, 

_ Smith V. Rochester (92 N. Y,, 463), in which Ruger, Ch, J,, refer- 
ring to the common-hiw rule, says "that it is generally conceded that 
this doctrine is inapplicable to the vast fresh-water lakes or inland seas 
of this country or the streams forming the boundary line of States" 
(p, 479). 

" The line between United States and Canada is located in the center 
of Niagara River (treaty of 1783, 8 U. S, Stat, at Large, 55, and that 
of Ghent in 1814, id,, 221; and such is the boundary of Niagara Count}'^, 
law of 1808, chap, 60), So far as our attention has been called to any 
authority relating to this river, it has been recognized and treated as, 
in every sense, a public river, as much as if it was an arm of the sea 
in which the tide tiowed,and acknowledged as such, (Tibbits'scase,l7 
Wend,, 623; Kingman v. Sparrow, 12 Barb., 201,) And we tliink 
because it is navigable in fact and constitutes the natural boundary 
between this and another country is the reason why the proprietary 
rights from its margin to such boundary line is in the State, and that 
the riparian owners have taken by the grant referred to only to the 
water's edge of the stream. And that the fact that at the particular 
place in question the river is not navigable by reason of the interrup- 
tion produced by the falls does not qualify or distinguish it in that 
locality as a public river from its general character," (Opinion. In re 
ComVs State Res'n, 37 Hun, 547,) 

Kingman v. Sparrow,. 12 Barb,, 201 (gen, term), decides that the 
common law rule, as applied to grants bounding premises on rivers, 
has no application to lands bounded on the Niagara River, on the 
grounds that it is "both a navigable and boundary stream, 

"This decision stands unreversed, and has not, so far as we have 
seen, in any adjudicated case, been subjected to hostile criticism. It 
makes the law for us in regard to this river, and relieves us from the 
necessity of an extended study of the decisions in England; or in the 
States of the Union; or even in our State in regard to the Hudson, the 
Mohawk, and other rivers," (Marsh, com'r,) 

In re State Res'n at Niagara, N. 16 Abb,, N. C, 175. 

Hensler v. Hartman. 

Opinion by J. G. Milburn, affirmed by special term, Fifth Dis- 
trict, 1878. 



300 PEESERVATION OF NIAGARA FALLS. 

"The Niagara River, like the St. Lawrence, seems to have been 
deemed by our courts as so clear and eminent an instance of nonappli- 
cability of the common law rule that it is sometimes cited as an un- 
doubted illustration of that class of rivers where the riparian proprie- 
tors do not take title to the bed of the stream; as b}' Judge E. D. 
Smith in the People v. Gutchess^-iS Barb., 656, 666); bv Judge Barker 
in the Butialo Pipe Line Co. v. N. Y., L. E. &W. R. R. Co. "(10 Abb., 
N. C, 107, 110); bv Senator Beardslevin Canal Commissioners r. The 
People (5 Wend., 423, 446, 462); and by Senator Tracy in the Canal 
Appraisers v. People (17 Wend., 570, 671, 623); the latter saying: 
'The rivers of Niagara and St. Lawrence, for instance, are acknowl- 
edged to be public rivers, in ever}' sense, as much as if they were arms 
of the sea into which the tide flowed.' And these references to the 
Niagara River seem to have been made to it quite as much in refer- 
ence to its magnitude and navigability as to its position as a boundary 
of our empire. The great proposition stands, therefore, on a double 
ground; and two elements unite to rescue this river from the domin- 
ion of the common-law rule." 

See the whole Opinion of Marsh, commissioner. 

The Niagara is a public navigable river, and riparian owners have 
no title to the bed of the stream. (Barney v. Keokuk, 94 U. S., 324, 
338.) 

"A riparian proprietor upon the Mississippi River owns the fee of 
the soil onl}^ to ordinar}^ high-water mark. 

"High-water mark, as the line between the riparian proprietor and 
the public, is coordinate with the limit of the river bed, and that only 
is to be regarded as river bed which the river occupies long enough to 
wrest it from vegetation, so as to destroy its value for agricultural 
purposes." (Houghton v. The C. D. and M. R. Co., 47 Iowa, 370.) 

"The State has the title to all the navigable waters within its bor- 
ders, subject onl}" to the jurisdiction delegated by it to Congress in 
the Constitution of the United States, for the regulation of com- 
merce." (People V. Tibbets, 19 N. Y., 523.) 

It is familiar law that the shores of navigable rivers and streams and 
the lands under the waters thereof belong to the State within whose 
territorial limits they lie. (Brown, J., in Kerr v. W. S. R. R. Co., 
127 N. Y., 269, 277.) 

"And the doctrine is full}^ established that in fresh-water rivers, 
where the tide does not rise, except in our large lakes and rivers forni- 
ing thehoundai'y hetween us and other States and nations^ the owner- 
ship of the citizen is of the whole river — the soil and the water — sub- 
ject to the servitude of the public interest or right of way. (Ex parte 
Jennings, 6 Cowen. 536, and note, 26 Wend., 404.)" , 
Morgan v. King, 30 Barb., 9-15. 
819 i3arb., 484. 

"In New York it was long considered as settled law that the State 
succeeded to all the rights of the Crown and Parliament of England 
in lands mider tide waters, and that the owner of land bounded by a 
navigable river within the ebb and flow of the tide had no private title 
or right in the shore below high-water mark, and was entitled to no 
compensation for the construction, under a grant from the legislature 
of the State, of a railroad along the shore between high and low water 



PEESERVATION OF NIAGARA FALLS. 301 

mark, cuttings off all access from his land to the river, except across 
the railroad." 

Shiveley v. Bowlby, 152 U. S., 1-20. 

Citing Lansing v. kSmith, 4 Wend,, 9, 2. 

Gould V. H. K. R. R. Co., 6 N. T., 522. . 

People V. Tibbets, 19 N. Y., 523, 528. 

People V. Canal Appraisers, 33 N. Y., 461, 467. 

Langdon v. New York, 93 N. Y., 129. 144. 154, 156. 

New York v. Hart, 95 N. Y., 443, 450, 451, 457. 

In re Staten Island R. T. Co., 103 N. Y., 251, 260. 
The decisions of the United States courts, as well as the statutes, 
leave no doubt as to the question whether the Niagara is a public 
river and under the control of Congress and subject to the admiralty 
Jurisdiction of the United States courts under the Constitution. 

'"The navigable waters leading into the Mississippi and St. Law- 
rence and the carrying places between the same shall be common 
highways and forever free, as well to the inhabitants of the said terri- 
tory as to the citizens of the United States, and those of an}'^ other 
States that may be admitted into the confederacy without any tax, 
impost, or dut}' therefor." 

Ordinance of 1787, art. 4. 

Evolution of the Ordinance of 1787, by Jay A. Barrett. 

Univ. of Nebraska, Seminary Papers, Putnams, 1891. 
It is true that in the case of T\\q Thomas Jeferson {10 Wheat., 428), 
the common law rule was recognized, and the admiralty jurisdiction 
of United States courts confined to streams in which the tide ebbed 
and flowed. This case has, however, been overruled by 

Genessee Chief v. Fitshugh, 12 How., U. S., 443; followed by 
The Magnolia, 20 How., U. S., 296; and the 

Hine v. Trevor, 4 Wall., 655. 
On Februar}^ 26, 1845, Congress passed an act "extending the juris- 
diction of the district courts to certain cases upon the lakes and navi- 
gable waters connecting the same." (5 Stat. L., 726.) 

The case of the Genessee Chief decided that this act was constitu- 
tional, and decided further that this conclusion does not rest upon the 
power granted to Congress to regulate commerce, but "upon the 
ground that the lakes and navigable waters connecting them are within 
the scope of admiralty and maritime jurisdiction as' known and under- 
stood in the United States when the Constitution was adopted. The 
admiralty and maritime jurisdiction granted to the Federal Govern- 
ment by the Constitution of the United States is not limited to tide 
waters, but extends to all public navigable lakes and rivers, where 
connneree is carried on between different States, or with a foreign 
nation." 

"It is evident," said Chief Justice Tane}^ in the opinion, "that a 
definition that would at this day limit public rivers in this country to 
tide w^ater rivers is utterly inadmissible. * * * The lakes and the 
vMters connecting them are undoubtedl}'^ public waters, and we think 
are within the grant of admiralty and maritime jurisdiction in the 
Constitution of the United States." 

"The doctrine of the connnon law as to the navigabilit}^ of waters 
has no application in this country'. Here the ebb and flow of the tide 
do not constitute the usual test, as in England, or any test at all of the 
navigability of waters." (Field, J., in the Daniel Ball, 10 Wall., 557, 
663.) 

p N F— 06 20 



302 PRESERVATION OF NIAGARA FALLS. 

Prior to the revolution tlie possession of the lands of the American 
colonies was in the Crown of Great Britain. "And upon the Ameri- 
can revolution," says Gray, J., in Shively v. Bowlby (152 U. S., 15)^ 
"all the rights of the Crown and of Parliament vested in the several 
States, subject to the rights surrendered to the National Government 
bv the Constitution of the United States. (Johnson v. Mcintosh, 
S^Vheat., 595, 543; Martin v. Waddell, 16 Pet., 367, 408, 410, 414; 
(commonwealth v. Roxburv, 9 Gray, 451, 478, 481; Stevens v. Pater- 
son and Newark R. R., 5 Vroom (34 N. J. Law), 532; People v. N. Y. 
and Staten Island Ferry, 68 N. Y., 71.)" 

"The decisions of this court referred to at the bar regarding the 
shores of waters where the ebb and flow of the tide from the sea is not 
felt, but which are really navigable, should be considered with refer- 
ence to the facts upon which they were made, and keeping in mind the 
local laws of the diflerent States, as well as the provisions of the acts 
of Congress relating to such waters. 

"By the law of England, Scotland, and Ireland, the owners of the 
banks prima facie own the beds of all fresh-water rivers above the ebb 
and flow of the tide, even if actuall}^ navigable, to the thread of the 
stream, usque ad tilum aqua, (Lord Hale in Hargrave's Law Tracts, 
5; Bickett v. Morris, L. R. 1 H. L. Sc, 47; Murphy v. Ryan, jr., 2 
C. L., 143; Orr Ewing v. Colquhoun, 2 App. Cas., 839.) 

"The rule of the common law on this point appears to have been 
followed in all the original States, except in Pennsylvania, Virginia, 
and North (Carolina, and except as to great rivers such as the Hudson, 
the Mohawk, and the St. Lawrence in New York, as well as in Ohio, 
Illinois, Michigan, and Wisconsin. But it has been wholly rejected, 
as to rivers navigal)le in fact, in Pennsylvania, Virginia, and North 
Carolina, and in most of the new States. For a full collection and 
careful analysis of the cases, see Gould on Waters (2d ed.), sees. 
56-78." 

"The navigable waters of the United States include such as are 
navigable in fact, and which, b}" themselves or their connections, form 
a continuous channel for commerce with foreign countries or among 
the States. Over these Congress has control by virtue of the power 
vested in it to regulate commerce with foreign nations and among the 
several States." (Miller v. Mayor of New York, 109 U. S., 385.) 

"The term navigable embraces within itself, not merely the idea 
that the waters could be navigated in fact, but also the idea of public- 
ity, so that saying waters were public was equivalent, in legal sense, 
to saving they were navigable." (McManus v. Carmichael, 3 Clarke 
(Iowa), 1-27.) 

"A river is a navigable water of the United States when it forms, by 
itself or by its connection with other waters, a continued highway 
over which conuuerce is or ma}^ be carried on with other States or for- 
eign countries in the customary modes in which such commerce is con- 
ducted by water." (The Montello, 11 Wall., 411.) 

11. 

By Artice VI of the treaty of Ghent (signed December 24, 1814) 
the questions concerning the boundary between the United States and 
the British possessions "from the point where the fortj^-fifth degree 
of north latitude strikes the river Iro([U(Ms or Cataraquy to the Lake 



PKESERVATION OF NIAGARA FALLS. 303 

Superior" were referred to two commissioners, whose duty it was to 
designate the boundary line. These commissioners rendered their 
decision June 18, 1822. The following extract from their decision 
indicates the boundary line from the mouth of the Niagara River to 
Lake Erie: 

"Thence easterly along the middle of said lake (Ontario) to a point 
opposite the mouth of the Niagara River;, thence to and up the mid- 
dle of said river to the Great Falls; thence up the falls, through 
the point of the Horse Siioe, keeping to the west of Iris, or Goat 
Island, and of the group of small islands at its head, and following the 
bends of the river so as to enter the strait between Navy and Grand 
islands; thence along the middle of said strait to the head of Navy 
Island; thence to the west and south of and near to Grand and Beaver 
islands, and to the west of Strawberry, Squaw, and Bird islands, to 
Lake Erie." — (See book containing treaties and conventions between 
United States and other powers, Washington, 1889, pp. 403, 407, 408.) 

Dr. Travers Twiss, in his work on the Law of Nations, says: 

"8144. The Roman jurists regarded certain things as incapable by 
nature of being appropriated. 'Et quidem naturali jure communia 
sunt omnium hffic, aer aqua profluens, et mare, et per hoc litora 
mans.' * * * 

"There is accordingly no warrant of natural law for an absolute 
right of property in the running water of rivers (aqua perennis) any 
more than in the tidal water of the sea. But if the free and common 
use of a thing of this nature (namely, which is of itself inexhaustible) 
be prejudicial or dangerous to a nation, the care of its own safety will 
entitle it so far, and so faronly, to control the use of it b}^ others, as 
to secure that no prejudice or danger result to itself from their use of 
it. A nation mav' accordingly have a right of empire over things 
which are nevertheless by nature communis usus, and over which it 
can not acquire an absolute right of property; as, for instance, over 
portions of the high seas, or over rivers lohich form the houndary of 
its territory.^'' 

Vide Vattel, Law of Nations, bk. I, ch. 22; bk. II, ch. 7. 
Houck on Navigable Rivers, ch. 6. 
Tyler on Boundaries. 

The right to control the waters of a river which is the boundary 
between two countries belongs to both countries. This right is inci- 
dental to sovereignty. The withdrawal of excessive quantities of 
water by one country would naturally give rise to complaint by the 
other. Should Canada or Ontario authorize the diversion of a suffi- 
cient quantity of the water of the upper Niagara to inflict injury upon 
the opposite bank or the riparian owners thereof, it would be incum- 
bent upon the Federal Government to remonstrate. The State of New 
York can not enter into negotiations with a foreign power. 

"The well-settled rule of the law of nations is, that where an arm 
of the sea or a river is the boundary between two nations or States, if 
the original right of jurisdiction is in neither, and in the absence of 
any convention respecting it, each holds to the middle of the stream. 
The true line of territorial boundary between the United States and 
the British Provinces in the bay and waters of Passamaquoddy is the 
middle of the stream or channel between the territories of the two 
countries; inasmuch as the treaty of 1783 contains nothing definite on 
the subject and fixes generally the eastern boundary line of the United 



304 PEESERVATION OF NIAGARA FALLS. 

States on the Bay of Fund}-, of Avhich Passaniaquoddy Bay is part." 
(Ang-ell on Tide Waters, 2d ed., p. 7.) 

" Wliere a navigable river forms the boundary of conterminous 
States (countries) the middle of the channel, or thalweg, is generally 
taken as the line of separation between the two States, the presump- 
tion of law being that the right of navigation is common to both; but 
this presumption ma}' be desti'oyed by actual proof of prior occupancy 
and long undisturbed possession, giving to one of the riparian pro- 
prietors the exclusive title to the entire river." 
Elements of Inter. Law. 
Wheaton, Lawrence's Edition, p. 3-iO. 

"Where a navigable river forms the boundary between two States 
both are presumed to have free use of it, and the dividing line will 
run in the middle of the channel, unless the contrary is shown by long 
occupanc}' or agreement of the parties." (Intrud. to Inter. Law, 
Woolsey,"^ 6th ed., p. 79.) 

Justice Story in Poole v. Fleeger (11 Pet., U. S., 185. 209), says: 
"It can not be doubted that it is a part of the general right of sover- 
eignty, belonging to independent nations, to establish and iix the 
disputed boundaries between their respective territories; and the 
boundaries so established and iixed by compact between nations, become 
conclusive upon all the subjects and citizens thereof, and bind their 
rights, and are to be treated, to all intents and purposes, as the true 
and real boundaries. This is a doctrine universally recognized in the 
law and practice of nations." (Quoted and approved by Field, J., in 
Virginia v. Tennessee, 148 U. S., 503, 525; Iowa v. Illinois. 147 U. S., 
1-14.)_ 

While it is true that the boundary line between United States and 
Canada is an imaginary line in or through the Niagara Kiver, the real 
international boundaV}' is the river itself, and as such the United States 
have jurisdiction over its waters as far as the boundary line, notwith- 
standing that the title to the river bed and soil on the American side 
oi the imaginary boundary line is in the State of New York. (See Illi- 
nois Central li. K. Co, 'v. Illinois, 146 U. S., 387, 435, et seq., and see 
pp. 452-454.) 

The Niagara is navigable in fact most of its length. Whether com- 
merce is actually carried on over its water between New York and 
Canada or not, commerce may be so carried on. Congress has authority 
over it, therefore, under section 8, Article I of the United States Con- 
stitution, which provides that "Congress shall have power to regulate 
commerce with foreign nations, and among the several States and with 
the Indian tribes." 

Cooley, Cons. Line, page 728 (6th ed.) says: 

"'Congress is empowered to regulate commerce with foreign nations 

and among the several States; and wherever a river forms a highway 

upoji which conuuerce is conducted with foreign nations or between 

.States it nuist fall under the control of Congress under this power 

over commerce." 

Pvven over streams lying entirely within a State Congress has power 
to rcguhitc commerce. (Williamette Iron Bridge Co. v. Hatch, 125 
U. S., 1.) 

Nebraska v. Iowa (143 U. S., 359) decides that "when grants of land 
border on running water, and the banks are changed by the gradual 
process known as accretion, the riparian owner's boundary line still 



PKESERVATION OF NIAGARA FALLS. 305 

remains the stream; but when the boundary stream suddenly abandons 
its old bed and seeks a new course by the process known as avulsion, 
the boundary remains as it was, in the center of the old channel; and 
this rule applies to a State when a river forms one of its boundary 
lines." 

The opinion by Brewer, J., quotes at length from the opinion of 
Gushing- (S Opin. Atty. Genls.), 175: 

"For in truth," says Attorney-General Cushing, "just as a stone 
pillar constitutes a boundary, not because it is a stone, but because of 
the place in which it stands, so a river is made the limits of nations, 
not because it is running water bearing a certain geographical name, 
but because it is water flowing in a given channel, and within given 
banks, which are the real international boundary" (p, 362). 

The President has an unrestricted power to make treaties. "The 
Constitution places no limits whatever upon the subjects, conditions, 
or contents of treaties." 

Pomeroy Cons. Law, 9th ed., p. .566 and seq. 
St. Lou'is V. Hutz, 138 U. S., 226. 
Packer v. Bird, 137 U. S., 661. 

Cases on navigable waters. The latter especially to be consulted. 
Opinion by Field, J., citing the familiar cases and reiterating the 
familiar rules. ^ 

"And it is a sound principle of national law, and applies to the 
treaty-making power of this Government, whether exercised with a 
foreign nation or an Indian tribe, that all questions of disputed bound- 
aries may be settled by the parties to the treaty, and to the exercise of 
these high functions by the Government, within its constitutional 
powers, neither the rights of a State nor those of an individual can be 
interposed." (McLean. J., in Lattimer v. Poteet, 14 Pet. 4, l-l.) 

"In their relations with foreign governments and their subjects or 
citizens the United States are a nation invested with the powers which 
belong- to independent nations." 

The Chinese Exclusion case, 130 CJ. S., 581. 
Knox V. Lee, 12 Wall., 457, 555. 

"For the purposes of international law that State only can be 
regarded as sovereign which has retained its poAver to enter into all 
relations with foreign states, whatever limitations it may impose on 
itself in other respects." (Woolsey, ib., p. 37.) 

If the United States can not enter into an agreement with another 
nation respecting the waters of a river which separates the territory 
of the two nations, it does not possess complete sovereignt}^. It would 
be preposterous to claim this to be the fact. 

"By sovereignty we intend the uncontrolled, exclusive exercise of 
the powers of the State; that is, both of the jjower of entering into 
relations with other States and of the power of governing its own 
subjects." 

The treaty-making power of the United States would not be used to 
injure one of the States of the Union. 

"Our Government," says Woolsey (Inter. Law, p. 161), "when the 
Northeastern boundary was in dispute, declared that it had no power 
to dispose of territory claimed by the State of Maine. ' The better 
opinion would seem to be,' says Chancellor Kent, ' that such a power 
of cession does reside exclusively in the treaty-making power under 
the Constitution of the United States, although a sound discretion 



306 PEESERVATION OF NIAGAEA FALLS. 

would forbid the exercise of it without the consent' of the interested 
State." 

Whatever interest New York may have in the waters of the Niagara 
River, it can hardly be questioned that the United States, in the exer- 
cise of its treaty-making- power as a sovereign, can enter into an 
agreement with Great Britain to prevent the further diversion of the 
water of the upper river on both sides of the same. 

The cataract being so extraordinary, and belonging, one may say, 
to the human race, the nations witliin whose boundaries it lies may be 
regarded as trustees for its protection and preservation. It becomes 
their dut}'^, therefore, to agree that private corporations shall not be 
permitted to diminish its grandeur. 

Indeed, it may be argued that the State of New York also occupies 
the position of a trustee with reference to the cataract and the upper 
river; and that as such trustee it was exceeding its duty and violating 
its trust in granting to private corporations the right to take and 
divert the waters of the river which it should have jealously guarded 
as trustee for the public. 

If the United States Government and Great Britain refuse to inter- 
pose, there is nothing to prevent the State of New York and the Domin- 
ion of Canada (provided they are so disposed) from drawing oH' so 
much of the water of the upper Niagara as to make the cataract prac- 
tically disappear. 

Inasmuch as natural objects of great fame and splendor are now 
regarded by enlightened people as entitled to Government protection, 
and States under an implied trust or obligation to preserve them for 
the benefit, instruction, and pleasure of the people, it would seem to 
be a most natural and proper thing for the two Governments to agree 
that hereafter the protection required and expected shall be accorded. 

"The United States Government treats the diversion of obstruction 
of the ordinary flow of Avater, when caused by foreign nations, as a 
national grievance, afl'ording ground for national complaint." 

In 1880 Secretary Evarts wrote to the United States minister at the 
Mexican capital and also to the Mexican minister at Washington, com- 
plaining that the Mexicans on the western sliore of the Rio Grande are 
in the habit of diverting into ditches dug for that purpose all the 
water that comes down the river in the dry season, thereb)^ prevent- 
ing our citizens on the Texan shore from getting sufficient water to 
irrigate their crops. He said that this practice is "in direct opposi- 
tion to the recognized rights of riparian owners," and that it "might 
eventuall}^ if not amicabl^^ adjusted through the medium of diplo- 
matic intervention, be productive of constant strife and breaches of 
the peace'between the inhabitants of either shore." In 1884 Secretary 
rrelinghu3'Sen wrote to the United States minister at the British court 
that the erection of works on the Medvxinkik River in New Bruns- 
wick, in such a way as to obstruct the flow of water in Maine, and to 
injure the lumbering business in that State, is a proper subject for 
diplomatic interposition by this Government. (Harvard Law Review, 
Vol. VIII, No. 2.) 

November, 1894, page 144 (article on "Power of a State to divert an 
interstate river," by George B. French and Jeremiah Smith). 

See 1 Wharton International Law Digest, sec. 20. 

"The State of Texas has municipal jurisdiction under the law of 
nations over the Rio Grande to the middle of the stream, so far as it 



PEESERVATION OF NIAGARA FALLS. 307 

divides Texas from Mexico. This is subject to such international 
jurisdiction as the United States may have over such waters under the 
Constitution of th(^ United States, and to the right of the free use bj'' 
Mexico of the channel/' 

Mr. Bayard to Mr. Bowen, June 12, 1886. 
I Wharton, Inter. Law Dig. sec. 30. 

If it has satisfactorily been shown that the Niagara is a public and 
navigable stream, constituting the boundary between the United States 
and Canada; that the United States Government and Great Britain 
each has jurisdiction over an undivided half of it, and that the two 
nations, as tenants in common, may agree between themselves that 
the water of the river above the Falls shall not be further diverted, 
in order that the volume and grandeur of the most famous natural 
object on the continent may be preserved, the question remaining to 
be answered is. Will the two Governments enter into such agreement? 

In 1885 the State of New York in response to a popular dem;uid, as 
expressed in petitions and through the press, appropriated a consider- 
able sum of money to pay for the shore and islands of the river near 
the Falls which it has taken from private owners under the exercise 
of the right of eminent domain. In 1888 the Province of Ontario 
assumed ownership of the river bank on the Canadian side, and thus 
the Falls and the rapids seemed to be guarded from the profane touch 
of money-mongering corporations. 

The possibility that the State of New York and the Province of 
Ontario, after having done so much for the protection and preserva- 
tion of the scener\' of the Falls, would deliberateh^ grant to private 
corporations the right to diminish and injure and partially destroy 
the great spectacle of the Falls, did not occur to those interested in 
Niagara. 

Whether or not the diversions already authorized, or claimed to be 
authorized, wall have a serious effect upon the cataract need not to be 
discussed. So long as the upper river remains without the pale of 
international protection there is constant danger to the cataract. 

If to enlightened men both in this country and England, it seemed 
to be reprehensible neglect of duty for the State of New York and the 
Province of Ontario to permit the banks and islands of the Niagara 
adjacent to the cataract to remain under private control, with all the 
concomitant defacements, unsightliness, and injuries to the scener}^, 
what shall be said of them when they grant away to private corpora- 
tions the right to divert great volumes of water of the upper Niagara, 
and thus lay profane hands uj^jon the great cataract itself? 

Surely here is an op})ortanity for two governments, in the exercise 
of the power which appertains to them as sovereigns, to interpose and 
as trustees for the peoples of both countries and for mankind, to decree 
that hereafter such diversions shall cease, that the Falls of Niagara 
shall be preserved in all their natural grandeur, undiminished and unin- 
terfered w'ith, in order that men of all nations may resort thither for 
edification and delight henceforth and forever. 



308 PBESERVATION OF NIAGARA FALLS. 



APPENDIX H. 



DOCUMENT Ifo. 6. 

59th Congress, 1st session. 

COMMITTEE ON RIVERS AND HARBORS, 
House of Representatives, U. S. 



Effect of Withdrawal of Water from Lake Michi- 
gan by the Sanitary District of Chicago. 



United States Engineer Office, 

508 Federal Building, Chicago^ III., May 33, 1906. 

General: I have herewith to submit the following report upon the 

subject of withdrawal of water from Lake Michigan by the Chicago 

drainage district, as referred to me by first indorsement of vourottice, 

April 13, 1906, upon letter of Hon. T. E. Burton dated April 11, 1906. 

2. Assuming, from the last paragraph of that letter, that an imme- 
diate answer Avas not required, I wrote to the Chicago sanitary dis- 
trict, and to the Chicago River Improvement Association and to other 
interested parties, to secure from them an expression of their views 
on the subject, and 1 expected to have recei\"ed all their answers over 
three weeks ago. But the confusion incident to a change of office of 
the sanitary district and to the recent labor strike among the steam- 
boats of this region, and other unforseen circumstances, have delayed 
such reports. That of the sanitary district is now received (copy 
herewith); but the date of receipt of the others can not now be asserted 
with any certainty. Consequently I think best to submit the present 
report without further delay, and will submit further reports after the 
river association and other parties have been heard from. 

3. The present permits from the War Department to the Chicago 
sanitary district are briefly as follows: 

{a) That of May 8, 1899 (E. D. 35041 (?)), authorizing the diversion 
of water from Lake Michigan via Chicago River, its South Branch and 
West Fork, into the drainage canal at a point near Roby street, Chi- 
cago; this permit not specifying any particular volume of water to be 
diverted, but, by implication, indicating a volume of not exceeding 
300,000 cubic feet per minute (5,000 cubic feet per second), and a 
velocity not exceeding 1.25 miles per hour (1.83 feet per second), 
which were the limits there named as given in a prior permit for 
deepening and widening Chicago River as a preliminary to the drain- 
age canal construction. The real limit of the flow, allowed under this 
permit, is the point at which "such flow may become unreasonably 
obstructive to navigation or injurious to property." 



PRESERVATION OF NIAGARA FALLS. 309 

(h) That of April 9, 1901 (E. D. 3521:2 (?)), authorizing a flow of 
200,000 cubic feet per minute (3,333 cubic feet per second) from mid- 
night to 4 p. m. , followed by 300,000 cubic feet per minute (5,000 cubic 
feet per second) from -i p. m. until midnight. 

(c) That of December 5. 1901 (E. D. 35212 74), authorizing a flow of 
250,000 cubic feet p<^-r minute (4,167 cubic feet per second) throughout 
twenty-four hours ot the day. 

(d) "That of January 17, 1903 (E. D. 35242 80), authorizing a flow of 
350,000 cubic feet per minute (5,833 cubic feet per second) during the 
winter (closed navigation) season of that year until March 31, 1903. 

(f) After the expiration of the time limit, of permit (c/), the limit of 
permit (c) of December 5, 1901, came again into eflect; so that the 
present limits are 250,000 cubic feet per minute (4,167 cubic feet per 
second) for twenty-four hours per day. 

4. Under the provisions of the Illinois drainage act of Ma}^ 29, 1889 
(sees. 23-24), the sanitary district is required to be able to maintain in 
the canal a flow of 20,000 cubic feet per minute (333 cubic feet per 
second) for each 100,000 of population in its district, if such population 
at any time exceeds 1,500,000; and it is required, under certain pro- 
visions as to future navigation, to give the canal a cross section sufii- 
cient to pass 600,000 cubic feet per minute (10,000 cubic feet per second) 
with a velocity not exceeding 3 miles per hour (4.4 linear feet per sec- 
ond). The flrst condition would by inference allow only a population 
of 1,250,000 for the already authorized flow of 250,000 cubic feet per 
minute (4,167 cubic feet per second), and it does require a flow of 
300,000 cubic feet per minute (5,000 cubic feet yjer second) for the pop- 
ulation of 1,500,000 already claimed for the district. The volume of 
water flow so far allowed by the War Department is therefore less than 
that at present demanded by the Illinois State laws. 

The cross section of the Chicago River when its widening shall be 
completed by the drainage district will be such that at its smallest cross 
section (omitting contraction at bridge draws) it will pass a volume of 
600,000 cubic feet per minute (10,000 cubic feet per second), with a 
current of 1.46 miles per hour (2.13 feet per second), this volume being 
considered sufficient for the district for all actual needs of to-day as 
well as for several years more, or until the district population shall 
reach 3,000,000. The sanitary condition of the river has been so good 
so far with the 250,000 cubic feet per minute (4,167 cubic feet per 
second) already authorized by the War Department that there is no 
special apparent need (other than legal) for a use to-day of any greater 
volume; but the sanitary district, looking to the completion of the 
river widening in 1907-1909, desires the 300,000 cubic feet per minute 
required by its charter for its present 1,500,000 population and, look- 
ing to the future, naturally seeks authority for such a flow as will pro- 
vide for still further enlargement of the district and for future 
rapid growth of its population. This situation has already been 
briefly explained to the War Department and to Congress in the recent 
report on a 14-foot navigable waterway from Lockport, 111., to St. 
Louis, Mo. , via the Des Plaines, Illinois, and Mississippi rivers. (Pp. 
10-11, H. Doc. No. 263, 59th Cong., 1st sess.) 

5. The future extent of demand for diversion of water from Lake 
Michigan, in the neighborhood of Chicago, must not be supposed lim- 
ited to Chicago River alone, or even to the Chicago sanitary district 
as it was when originally planned. The results of first work having 



310 PRESERVATION OF NIAGARA FALLS. 

indicated such good prospects for the future, the original single intake 
through Chicago River main entrance has already been aumiiented by 
a pumping plant on the lake near Thirty-ninth street, which pumps 
into the Thirty-ninth street sewer to flush its contents through the 
South (or Stock Yards) Fork and the West Fork, South Branch, Chi- 
cago Kiver, to the head of the district drainage canal nearRobey street, 
this route accounting for the 2,000 cubic feet per second asked for the 
Thirty ninth street sewer. In the same way a secondary canal is to 
be completed from Calumet River, along the "Sag "route through 
the old State canal feeder, to empty into the district drainage canal at 
a point about 18 miles from its head in Chicago River and about 9 
miles from Lockport, at which latter place the main canal now over- 
flows into the Des Flaines River, this route being intended to drain 
and take sewage from an area around South Chicago, 111., and East 
Chicago, Ind. (which latter place is likely some day to have a million 
population of its own), and accounting for the 4,000 cubic feet now 
requested for Calumet River. The 4,000 cubic feet may be enough 
for Calumet River for a few years, but eventually there will be a 
demand for several times this amount for its northwestern Indiana 
surroundings. 

According to recent newspaper articles there is a not improbable pos- 
sibility of other towns and cities on the lake front of northeastern 
Illinois and southeastern Wisconsin desiring to erect pumping plants 
along the lake front and to pump their own sewage into the tribu- 
taries of the Des Flaines and Fox rivers, and to draw large volumes 
of water from Lake Michigan for flushing purposes by pumping sta- 
tions and flushing conduits similar to the arrangement at Thirty-ninth 
street, Chicago. Furthermore, this office has recently been inform- 
ally told that there is a liability of a combined powder and navigation 
canal being established b}' private parties in the near future between 
Lake Michigan and the Ohio River basin which will wish to take con- 
siderable of its water supply from Lake Michigan and will demand a 
right to the same by reason of being an aid to navigation. Finally, 
there are other water routes, already partly in existence, b}" which the 
water of the West Fork of Chicago River is liable to be drawn off 
direct into the Des Flaines River for power purpose& without passing- 
through the drainage canal, and demands are liable to be made at 
any time in this direction. Consequently, any question as to the vol- 
ume of diversion of Lake Michigan waters into the Mississippi River 
basin must look forward to demands for a much greater diversion than 
the 10,000 cubic feet per second now needed by the sanitar}' drainage 
district, and greater, even, than the 14,000 cubic feet per second now 
requested by them for present and future use. In my opinion, the 
War Department must look forward to a future not unreasonable 
demand for from 20,000 to 30,000 cubic feet per second for navigation 
and sanitary purposes, to be taken out of Lake Michigan at points 
along the Wisconsin, Illinois, and Indiana shores. 

6. If water diversion must be limited (as already appears necessary 
to safeguard the future public use of the same) it would seem to this 
Oliice that the first right to the use of water belongs to navigation, to 
which water is an absolute necessity. The second right belongs to the 
public needs for sanitary purposes, so far as they can not be provided 
for otherwise, and the use of water for power purposes alone should 
be made secondary to the above, since it is always possible to obtain 



PKESERVATION OF NIAGARA FALLS. 



311 



power in other ways. For such reasons I consider the sanitarj^ dis- 
trict request and other similar requests should be given more weight 
than such recjuests as are based merely upon uses for power purposes. 

7. The foregoino- general information and discussion has been given 
above in. order to make easier a consideration of back reports and back 
history should the War Department desire to refer to them during 
further discussions of this question, and also in order to make easier 
the consideration of such new reports as may be brought forward from 
time to time. The actual experience of the past has so far given no 
definite, plainly observable, direct results to govern the future treat- 
ment of the questions at issue. Such treatment must therefore still 
be based upon theoretical or "academic" discussions as to probable 
water levels, probable currents, and probable difficulties in handling 
the large boats that are expected to use Chicago Kiver and the water- 
way from Lake Michigan tiirough Chicago River, the drainage canal, 
and Illinois Kiver to the Mis.sissippi so fast and so far as the 20 feet, 
14 feet, and 8 feet depth channels nja}- be extended or otherwise secured 
in the future. 

8. The expected etfect of the proposed water diversion upon lake and 
river levels has been brietiy discussed, by the li-feet waterway board 
in 1905 (p. 11, H. Doc. No. 263, .5Hth Cong., 1st sess.) and'by the 
United States lake survey quite fully in 1900 and 1904 (p. 5401, annual 
report 1900; pp. 4120 and 4131, annual report 1904). This discussion 
by the United States lake survey appears to be the most reliable yet 
offered by anyone, and its predicted results are apparently not dis- 
puted by either the sanitary district or any other existing .engineering 
authority. 

9. From the point of view of the lake survey discussion upon this 
subject, I afiirm positively that an}^ contiiuious permanent diversion 
of water from Lake ^Michigan into the Mississippi River basin through 
the sanitary district drainage canal or other waterwa3's must necessarily 
effect a permanent lowering of the average water level of Lakes Michi- 
gan and Huron if the effect be considered as measured below the levels 
which would exist in these lakes if no such diversion were allowed. 
The only question at issue is, therefore, whether such lowering will 
be appreciable and serious. 

10. From the lake survey discussion, above referred to, it will be 
evident that — 



One year's steady flow- 
age in cubic feet— 






Per 

second. 


Per 

minute. 




4, 107 
6, 000 
8.000 
10, 000 
12. 000 
14,000 
20, 000 
30, 000 


250, 000 
360, 000 

480, 000 
f ',00. 000 
720. 000 
840. 000 
1,200,000 
1,800,000 


1.3 inches depth.. 

1.8 ini'hesdepth.. 

2.4 inches depth.. 

3.0 inches depth.. 

3.5 inches deprh.. 

4. 1 inclies depth.. 

5.9 inches depth.. 
8.9 inches depth.. 


Over the entire water surface (45,314 square miles) 
of Lakes Michigan and Huron combined 



It is evident that a long-continued diversion of the above volumes 
of water must produce serious cumulative effects, not necessarily 
specially observable in the first few j'ears, but sure and certain in its 



ai2 



PKESERVATION OF NIAGARA FALLS. 



final effects upon the average level after several years; and the conse- 
quent permanent lowerino- will continue until the time comes when 
the water surface of the head of St. Clair River (natural outlet of Lakes 
Michigan and Huron) shall have lowered enough to cause the loss of 
water flow through St. Clair River to equal the newly developed water 
flow through the new diversion outlets. Were it not that the volume 
of outflow of Lake Huron diminishes slightly as the surface level 
drops, the surface level of combined Lakes Michigan and Huron 
would be lowered each 3^ear by an amount equal to that of the last 
column of the above table. 

11. As it has been found hj reliable observations of the United 
States lake survey (see 1904 annual report, above quoted) that a fall of 
1 foot in Lake Huron level corresponds to a loss of 19,238 cubic feet 
per second in the flow discharge through St. Clair River, it becomes 
evident that the flnal permanent lowering of Lakes Michigan and Huron 
levels will be a little more than twice as much as the depths given in 
the above table as corresponding to the actual volume of a single 
year's flow. The lake survey formulae lead to actual results approx- 
imately as follows: 



Flown se of diversion 


Deptli of lowering 


if the surface of Lakes Michi- 


canals and outlets— 


gan and Huron at the 


end of the — 


Per sec- 


Per minute. 


First 


Third 


Fifth 


Final. 








year. 






Cubir feet. 


Cubicfeet. 


Inches. 


Inches. 


Inches. 


Inches. 


Feet. 


4,167 


250, 000 


1 


2 


2 


3 


0.2 


6,000 


360, 000 


1 


3 


3 


4 


.3 


8,000 


480, 000 


2 


4 


5 





.4 


10, 000 


600, 000 


2 


5 


6 


6 


.5 


12, 000 


720, 000 


3 


6 


7 


/ 


.6 


14,000 


840, 000 


3 


7 


8 


9 


.7 


20, 000 


1 200,000 


5 


10 


11 


13 


1.1 


30, 000 


1, 800, 000 


7 


14 


n 


19 


1.6 


In percen 




38 


76 


91 


11 10 1 









These effects nmj be one-twentieth more during years of low-lake 
-stages or one-seventh less during years of high-lake stages. 

12. The effect on Lake Erie will be very closely four-flfths of the 
above and will in like manner amount to approximately as follows: 



Flowage of diversion 
canals and outlets— 


Depth of lowering of the surface of Lake Erie 
at the end of the— 


Per sec- 
ond. 


Per minute. 


First 
year. 


Third 
year. 


Fifth 
year. 


Final. 


Cubicfeet. 

4,167 

6,000 

8,000 

10, 000 

12,000 

14, 000 

20, 000 

30,000 


Cubicfeet. 
250, 000 
360. 000 
480, 000 
600, 000 
720, 000 
840, 000 
1,200,000 
1, 800, 000 


Inches. 
1 

1 

2 
3 
3 
4 
6 


Inches. 
1 
2 
3 
4 
5 
6 
8 
12 


Inches. 
2 
3 
4 
5 
6 
7 
9 
14 


Biches. 

2 

3 

4 

5 

6 

8 
11 
16 


1 
Feet. 
0.2 

.3 

.3 

.4 

.5 

.6 

.9 
1.3 



The effects may be one-twentieth more during 3"ears of low lake 
stages or one-seventh less during years of high lake stages. 

13. By examination of the last graphical chart prepared b}^ the 
United States lake survey to show the water levels of the Great Lakes 



PRESERVATION OF NIAGARA FALLS. 313 

from 1860 to 1904 (opposite p. 1056, annual report 1901), it will be 
seen that these lakes act as storag^e ponds, and their surface levels 
graduall}^ rise whenever rainfall is greater than evaporation and run- 
off, and graduall}' fall under the opposite conditions. The chart shows 
Lakes Michigan and Huron to rise and fall practically as a unit, and 
these two lakes, with Lake Erie, rise regularly from 0.5 to 1.7 feet 
every spring, and they fall nearly an equal amount every autumn, 
being usually lowest in January-February and highest in Juh^-August. 
In addition, the average level gradually rises during a series of wet 
years and falls during a series of dry years. In 1879-80 the water 
level of Lakes Michigan and Huron was at about a medium stage (about 
581.2 above New York Harbor); after which the annual average grad- 
ually rose about 0.3 foot on an average each year until 1886, when it 
reached as high as at any time since ISt^O (standing about 583); after 
which it fell about 0.3 feet per year until 1895-lH), when it was lower 
than any prior record, even that of 1817 (standing about 579.5); after 
which it again started upward, its average rise for the past nine 3^ears 
being, however, only 0.12 foot per year, leaving the water level of 
1904-5 at a standstill and at an exceedingly low stage (about 580.6), 
where a downward tendency of level would seriously damage the inter- 
ests of navigation and lead to great expense to the Federal Govern- 
ment for extensive redredging in all the harbors of Lakes Michigan, 
Huron, and Erie, and in the adjoining water^\ays of St. Marys Kiver 
from Lake Huron upward to the foot of the Sanlt Locks, and in the 
St. Clair River and Lake and Detroit River from Lake Huron down- 
ward to Lake Erie. 

Furthermore, by reason of winds and barometric effects, oscillations 
of 6 inches several times in a single da}^ are frequent, and 2 to 4 feet 
within an hour are occasionally experienced. Consequently, individual 
exceptional levels are misleading, and the general effects of water 
diversions must be measured by annual average rather than by 
monthly or daily. Even when considering only annual levels, the 
irregular oscillation of the annual average lake surface, combined 
w4th the fact that so far the sanitary district diversion has been 
contined to 4,167 cubic feet per second (250,000 cubic feet per minute), 
makes it difficult for an}!^ one to prove that the 0.2 foot final lowering 
expected theoretically from the past 250,000 cubic feet per minute 
diversion has really been the cause of the present unusually slow 
recovery from the unusually low stage of 1895-96, and of the present 
practical continuance of dangerously low water stages. But the dan- 
ger of further lowering of this level another 0.5 foot or more by an 
increase of the recentlj^ allowed 4,167 cubic feet per second up to 
10,000 and 14,000 cul)ic feet per second, as now requested. Is undoubt- 
edly real and should be evident from the above remarks. 

14. If diversions of from 4,167 to 30,000 cubic feet per second from 
Lake Michigan should be actually made at any future time, then the 
next time that redredging becomes necessarv in rivers and harbors of 
Lakes Michigan, Huron, and Erie, it will become necessarv for the 
Federal Government to dredge to lower levels than before, and the 
extra depth of such necessary dredging must be taken at the figures of 
the last columns of the above tables of paragraphs 11-12, viz, at from 
0.2 to 1.6 feet in Lakes jNlichigan and Huron and from 0.2 to 1.3 feet 
in Lake Erie, dependent upon the amount of diversion allowed. The 
only way of avoiding such extra dredging will be bv holding up the 



314 PRESERVATION OF NIAGARA FALLS. 

water levels of all these lakes l\y dams and other controlling works 
across the exits of these lakes, which will be expensive and probably 
impracticable for Lakes Michig'an and Huron and expensive, but 
practicable and eventually probable, for Lake Erie. The diversion of 
the 14,000 cubic feet per second named in the request of the Chicago 
sanitary district of April 11 would therefore mean future dredging- 
some day to 0.7 foot extra depth in all harbors of Lakes Michigan and 
Huron and to 0.6 foot in those of Lake Erie (or its equivalent in dams, 
etc.). The cost of such dredging of dams, etc., will be the price to be 
eventually paid l)y the Federal Government for granting such privi- 
leges to the sanitary district. 

15. The expected effect of the water diversion through Chicago River 
and the sanitary district drainage canal upon the use of the river and 
canal I)}" navigation is an entirely different question from that 
of lowering of lake levels;* and again I find that past experience 
fails to show definite direct results which can be used i6r deciding 
future effects. So far the actual flow under the above-named War 
Department permits has ordinarily been kept within the limits of the 
permits, although occasionally, during seasons of suspended or slack- 
ened navigation, such limits may have been exceeded for short inter- 
vals for experimental purposes. Except where the resulting flow has 
been temporarily increased by irregular causes (such as sudden natural 
changes of lake level), for Avhich the sanitary district has not been 
responsible, the currents have not so far proved to be unreasonably, 
or even moderately, obstructive to navigation or injurious to property. 
At times some protests have been made against a feared impending 
danger, and a few complaints have been made about troubles actually 
realized, but in practicall}^ all such cases the dangers and trouble have 
apparently proved to be largely imaginary or exaggerated. Such 
complaints, as a rule, have been due not to unreasonable currents, but 
mainh^ to the fact that prior to the opening of the drainage canal the 
Chicago River was ordinarily a quiet pool of dead Avater except for 
short intervals during strong winds and a rising or falling barometer; 
and the change from this quiet pool to a waterway with a constant 
current required the adoption of new or different methods for han- 
dling boats and required time for people to get used to the change. 

In the few cases where past troubles from currents have been real, 
they have been due to the contracted channel ways at bridges, tunnels, 
and other special points, where full dimensions of water flow have 
already been secured or are being secured by the drainage district 
improvements, or will be soon provided b}^ tunnel owners. These 
troubles in the past have been quite freely and fully commented upon 
or reported upon bj^ the boat interests and by this office, the most 
important of such repoits being those of the hearing before the hon- 
orable Secretary of War, May 16, 11^00 (E. D. 35242 7), that of 
Major \Villard, Februarv 16, 1901 (with third indorsement on E. D. 
35242 26), that of Major "Willard, June 20. 1900 (E. D. 35242'(?) ), that 
of Major Willard, March 29, 1901 (with third indorsement on E. D. 
3524240), and that of Colonel Ernst, November 5, 1901 (which led to 
permit E. D. 35242 74, quoted above). These reports show that the 
greatest velocity heretofore actually observed at^ny single point of 
the worst old bridge draw opening (that of Canal street, now greatly 
improved), was 2.24 miles per hour (3.29 feet per second), while the 
average for a whole cross section at this draw was only about 1.8 miles 



PRESERVATION OF NIAGARA FALLS. 315 

per hour (2.6 feet per second), and the average for a full 200-foot 
width of river just above and below the bridge would not have been 
over 1.2 miles per hour (1.8 feet per second); and that even a large 
part of this was probably due to sudden changes of lake levels for 
which the drainage district was not responsible. These currents, 
although much complained of at the time, are not greater than are 
constantly encountered in many tidal rivers on the Atlantic coast, where 
no complaints are made, because all boat captains and pilots are accus- 
tomed to such currents and make their arrangements accordingly. 

16. But if complaints have been urgently presented in the past at 
Chicago with an allowed flow of 4,167 cubic feet per second, there is 
no doubt but that further and numerous complaints must be expected 
when the total volume of flow shall be doubled, although the velocities 
to be met by a single boat passing through an}^ unobstructed portion 
of this river in future years will still be very small, owing to the new 
clear widths and clear depths being so great as to make the new cross 
section of the river at constricted places more than double the old 
cross section. Future trouble in the Chicago River, due to the cur- 
rents caused by the drainage district diversions, will be due not so 
much to the actual volume of water passing as to the fact that the 
public expects from the Chicago River to-day the performance of 
three entirely difierent functions, viz, (a) service as a sewer to carry off 
water freely, {!)) service as the main wharfage area or principal dock 
or slip of Chicago Harbor, and (c) service as a canal for free passage 
of boats from one end of the harbor to the other, including, probably, 
in a few 3^pars, service as the most important portion of the through 
canal or water route from Lake Michigan to the Illinois and Mississippi 
rivers. The Chicago River, even after enlargement to 200 feet width 
and 26 feet depth, according to the present plans of the sanitary dis- 
trict, will have all it can do to properly fulfill either one of the above 
functions alone, and it can not reasonably be expected to properly ful- 
fill any two of such functions, and much less to fulfill all three together. 

17. In the capacity of sewer to properly carry ofl' all the diluted 
sewage which the sanitary district must dispose of in the future, 
the South Branch and West Fork of Chicago River and the district 
drainage canal will need the use of the full cross section now being 
given to them at their typical points of constriction, viz, 1,700 square 
feet in South Branch, Chicago River, where a future 8,000 cubic feet 
per second is now asked for; 5,220 square feet in West Fork, South 
Branch, Chicago River, 5,412 square feet in the earth sections and 
3,542 square feet in the rock sections of the drainage canal, for all of 
which 10,000 cubic feet per second is now asked for; and 5,412 square 
feet in the lower (south) end of the drainage canal, where 14,000 cubic 
feet per second is now being asked for. I assume that after this 
volume of water reaches the Des Plaines and Illinois rivers it can be 
taken care of more easily than in the Chicago River and that the 
2,800 square feet cross section of the proposed 14-foot waterway, now 
under consideration by Congress, will be supplemented sufficiently by 
the rest of the natural river on each side of the improved boat channel. 
The above cross-sections, so long as no boats lie at wharves or pass up 
and down the river, will allow the passage of the 8,000 cubic feet per 
second through the South Branch, with average velocities of not exceed- 
ing about 1.2 miles per hour (1.7 linear feet per second); 10,000 cubic 
feet through the West Fork, with average velocities of not exceeding 



816 PEESER7ATI0N OF NIAGARA FALLS. 

about 1.3 miles per hour (1.9 linear feet per .second), and the same 
liow throuo-h the earth sections of canal at not exceeding 1.2 mile.s per 
hour (1.8 linear feet per second), and throuo-h the rock section of canal 
at not exceeding- 1.9 miles per hour (2.8 linear feet per second); and 
11,000 cubic feet through the lower end of canal at not exceeding 1.8 
miles per hour (2.6 linear feet per second). 

Wherever the full free cross section of the river is obstructed b}' 
bridge abutments or by boats, either at docks or passing, the average 
8,000 to 10,000 cubic feet per second water iiow must pass through the 
reduced cross section at increased speed. The full development of 
this increase, while not instantaneous, will require only a few moments. 
In this manner, at bridges, the velocities will be increased for a short 
length by about 30 per cent: at places where two boats of 40 to 50 
feet beam and 800 square feet wetted cross section are abreast the 
increase of velocit}- will be about 50 per cent; at places where three 
such boats are abreast the increase will be about 100 per cent, and in 
case four such boats should be abreast (one tied up at the wharf on 
each side of the stream and two others trying to pass in mid-river), the 
increase will be about 200 per cent. The drainage currents in the 
South Fork, South Branch, clue to the 2,000 cubic feet per second com- 
ing from the Thirty-ninth street pumping station, and in the North 
Branch, due to a sin>ilar pumpage probably soon to be established at 
some street near Evariston, in the north end of Chicago, will be onh^ 
aljout one-half of those in the South Branch, and their effects will 
probably be so small as not to be complained of by navigation inter- 
ests. The drainage currents in the canal proper between the West 
Fork and Lockport will be about the same as in the South Branch; 
but as this part of the canal was not originally a public water way and 
has not yet been accepted as such by the Federal Government, it is 
dout)tful whether the United States can object to any currents which 
its owners may establish or desire to establish therein. It is there- 
fore evident that so long as the Chicago River serves merely as a sewer 
and is not to be used by boats the drainage district currents will not 
be objectionable, but as soon as it is also used as a harbor or as a canal 
or Avater route the currents begin to be seriously questionable. 

18. I can see no use of Chicago River as a harbor or place for wharf 
frontage unless boats can stop and tie up somewhere nor unless they 
can pass each other to get to their place of wharfage, and on a stream 
like Chicago River the wharf owners on each side of the stream must 
be entitled to equal privileges. This means that there should be room 
for one boat to tie up on each side of the river and room for at least a 
third boat to pass. 

19. The Chicago boat owners claim that the Chicago commerce has 
been seriouslj' crippled because the tunnels prevented passage of boats 
drawing over 16 feet; that boats less than 45 feet beam are going out 
of existence on the Great Lakes, and that Chicago Harbor must pro- 
vide future facilities for boats of 45, 50, and even 60 feet beam. I 
therefore assume in the following discussioji that the advantageous use 
of Chicago River by boats nmst require preparation for boats of from 
40 to 50 feet beam and 800 square feet of wetted cross section when 
loaded. A mere clock or boat slip of 3 or 4 boats' length (say 2,000 
feet) should, for advantageous use by 50-foot-beam boats, have a clear 
width of 175 feet if straight, and 200 feet if at all curved, to allow of 
a boat tied up on each side and of one boat at a time entering or leaving 



PRESERVATION OF NIAGARA FALLS. 



317 



the slip, allowing' a few feet between them for free motion; but if the 
boat slip be more than 2,000 or 3,000 feet length it should, for safety 
of navigation and econom}' of time, be 50 feet wider, so as to allow of 
four full-sized boats abreast, two at wharves and two passing in mid- 
stream, 

20. As Chicago River, South Branch, including- its west fork up to 
the drainage canal entrance, is about 5.57 miles long and only 200 feet 
wide, and not straight; it is at present not wide enough for use as a 
boat slip or harbor for 40 to 50 feet length boats, except in alternate 
sections of half-mile lengths, and it can not advantageously be used 
even in that way for harborage purposes except by boats of less than 
-iO-f oot beam. Even then, as soon as one boat ties up at a wharf and a 
second boat tries to pass it. the current velocity in the South Branch, 
with 8,000 cubic feet per second drainage flow, is liable to increase (for 
the reasons given in paragraph 17) to 1.8 miles per hour (2.6 linear 
feet per second), and when three boats are abreast the current is liable 
to increase to 2.1: miles per hour (3.5 linear feet per second). Witli 
four boats abreast the current is liable to reach 3.6 miles per hour (5.3 
linear feet per second). 

21. These currents, due to the use of Chicago River for combined 
sewerage and harbor purposes, will vary with the volume of passing 
water about as follows: 



Volume of 
water flow. 


Current in South Branch, Chicago River (hav- 
ing 4,700 Square feet wetted cross section), 
which may be expected with boats of 800 
square feet wetted cross section. 


Open river. 


2 boats 
abreast. 


3 boats 
abreast. 


4 boats 
abreast. 


Cu.ft.per sec. 

4,167 

6, 000 

8,000 
10,000 
12, 000 
14, 000 


Ft. per sec. 
0.9 
1.3 
1.7 
2.1 
2.6 
3.0 


Ft. per sec. 
1.3 
1.9 
2.6 
3.2 
3.9 
4.5 


J^. per sec. 
1.8 
2.6 
3.5 
4.3 
5.2 
6.1 


Ft. per sec. 
2.8 
4.0 
5.3 
6.7 
8.0 
9.3 



22. The corresponding currents in the South Fork and in the earth 
section of the main drainage canal will be a trifle less, so as to give 
about the same currents for three boats abreast as will the South 
Branch for two boats abreast. The currents in the rock section of the 
drainage canal will be greater for two boats abreast than the}^ will be 
for three boats abreast in the South Branch. These currents are those 
due merely to the passage of the volume of water to be used at all 
hours of the day by the sanitary district, and are such as must be 
expected even though all the boats may be themselves tied up at the 
wharves or otherwise motionless. The obstructing boats will mate- 
rially back up the water somew^hat on their upstream sides, and 
between the suck due to the passing water and the pressure due to the 
teraporaiy difference of head above and below the boats the anchored 
or tied-up boats will suige and tend to tear themselves from their 
moorings. Obviouslj^, with such currents and a waterway only 200 
feet wide, two boats abreast in Chicago River, South Branch, may 
cause trouble, three boats abreast will be the limit of practicabilit}", 
and four boats abreast will become dangerous. Conditions will be a 



P N F — 06- 



-21 



318 PKE8ERVATI0N OF NIAGARA FALLS. 

trifle better in the West Fork and earth sections of the drainage canal, 
and much worse in the rock section of the drainage canal. 

23. Interference with the use of Chicago River for mere harborage 
purposes must therefore he expected when the drainage canal flow 
through the South Branch reaches 8.000 cubit feet per second and 
that through the West Fork reaches about 10,000 cubic feet per second. 
The only remedies then possible will be (a) to stop further diversion 
(as can now be done under the provisions of the existing permit which 
limit the diversion to the indefinite time and volume when "such flow 
may become unreasonably obstructive to navigation or injurious to 
property"), (b) to further widen or deepen the river (the widening 
being impracticable by reason of high cost of river bank property and 
the deepening being questionable because of danger to foundations of 
adjoining buildings), and (c) to move Chicago harborage out of the 
river into the lake (where it properly belongs and where further 
expansion will be much less costly to the Federal Government and 
quite practical within reasonable limits). 

21. From what has been said in the preceding paragraph it also 
should be obvious that Chicago River can not be advantugeouslj^ 
used as a canal or a through waterway for boats of over 1() feet beam 
without either abandoning the use of the river for wharfage purposes 
or for drainage purposes, or both. Engineering authorities, as a rule, 
agree that a canal for through boat travel should have a cross section 
six times as great ^s the cross section of the boats for which it is built, 
in order to allow of free travel and passage of one l)oat each wav all 
the time, and that wherever boats must tie up the cross section must 
be increased b}^ the addition of special wharf fronts or harbors on the 
side of the regular channel. A lesser cross section adds greatly to the 
deterioration of banks or revetments, diminishes greatl}^ the speed of 
travel of boats, and makes the proper handling of boats quite difficult. 
Chicago River, South Branch, and the West Fork are onl}- four times as 
wide as the boats which Chicago wishes to use in it and have only the total 
cross section needed for a canal to properly serve such boats even if 
its water were that of a quiet pool without au}^ current at all. Any 
use of the river as a harbor or any use of it as a sewer interferes with 
its proper use as a canal or through water route. 

The currents to be expected by passing boats are already given 
above, except as affected by bridges. I do not consider that on the 
Chicago River, South Branch and West Fork, the bridge interference 
need be considered, because under the plans of the Chicago drainage 
district all these bridges are given a clear span of 110 feet, and under 
the city ordinances boats are forbidden to tie up at or close to a bridge, 
and because boats will rarely attempt to pass each other in a bridge 
draw, so that the currents due to a bridge obstruction will not be mate- 
riall}' different from those due to two boats passing each other in open 
river or to two boats tied up at the wharves, one on each side of the 
river. So omitting bridge olistruction, the currents met by moving 
boats, so far as due to the drainage canal water flow, will be practically 
as above given for boats at rest. In considering the question of boat 
handling, and the speed and safety of the same, there must be borne 
in mind alwa^-s the boat's own velocity when in motion, which of course 
should be added to the current velocity, in order to determine the 
relative velocities of the boats and the river, also the ditlicultv of 



PRESERVATION OF NIAGARA FALLS. 319 

quickly displacing tlie river water to make room for the boat's own 
bulk; also the head of water temporarily banked up by the boat in its 
front during- its travel through the river. 

l^oatmen in Chicago River do not seem to be agreed as to the water 
velocities, which they regard as unreasonabh' obstructive to their 
boats, but state such velocities usually at somewhere between 2 and ,5 
miles per hour (about 3 and 7 feet per second); but all velocities above 
''2 miles per hour (3 feet per second) due to water flow through Chicago 
River appear to be questionable and usually objectionable. If the river 
is to be continued in use as a through waterway' and also as a harbor, both 
for heavy-draft boats, all use for drainage purposes is very objectionable 
above a flow of 6,000 cubic feet per second and will probably become 
"vm reasonably obstructive to navigation and injurious to propert}'" 
at about 6,000 cubic feet per second in the North Branch and at about 
8,000 cubic feet per second in the West Fork. If the harborage use 
of the river be abandoned, the limit of unreasonable obstruction to 
future navigation will probably arrive at about 8,000 cubic feet per 
second in the South Branch and about 10,000 cubic feet per second in 
the West Fork, and also in the lower end of the drainage canal below 
the point of receipt of the Calumet River sewerage arriving via the 
Sag and feeder canal. 

25. Summing up the above it may be briefly stated, therefore, that 
10,000 cubic feet per second diversion of water from Lake Michigan 
into the drainage canal will be, probabh', not unreasonably obstruc- 
tive to navigation and injurious to property if divided up into 6,000 
cubic feet per second through the main river and south branch, 
increased b}^ 2,000 cubic feet per second more through the Thirty- 
ninth street sewer and 2,000 cubic feet per second more through 
Calumet River (10,000 cubic feet per second in all), but that an increase 
in these amounts to 8,000, 2,000, and 4,000 cubic feet, respectivel}^ 
(14,000 cubic feet per second in all), will probably prove to be unreason- 
ably obstructive and injurious. Also that the 10,000 cubic feet per 
second will eventually and permanently lower the levels of Lakes 
Michigan and Huron by about 0.5 foot and Lake Erie by about 0.4 
foot, and 14,000 cu])ic foot per second will make these depths 0.7 and 
0.6 foot, respectively, which will be quite costly in future results. 
Verv respectfully, 

W. H. BlXBT, 

Lieut. Col.., Cor j>s of Engineers. 
Brig. Gen. A. Mackenzie, 

Chief of Engineers.1 U. S. Arniy^ 

Washington, 1>. C. 



Chicago, liny m, 1906. 

Dear Sir: Yours of April 18 last, addressed to the president of the 
sanitar}^ distiict of Chicago, was by him referred to me for reply. 
Taking up your interrogations seriatim, I submit the following: 

"A. How much will the withdrawal of water probal^ly lower the 
level of Lake Michigan, giving inches of lowering and time in which 
to take full efl'ect?" 

This inquiry is one which I frankly confess my inability to answer. 
The data necessary to the anssvering of this question are not in hand, 



320 PRESERVATIOlSr OF NIAGARA FALLS. 

and a Board of Engineers, of which you are an honored member, 
makes this statement: 

VESTED RIGHTS. 

The effect upon the level of Lake IMichigan of withdrawing 10,000 cubic feet per 
second for an indefinite period has been the subject of an elaborate investigation 
under the office of the lake survey in Detroit, and the conclusion reached is that tlie 
final effect will be to lower the level about 6 inches. (See Annual Report of Cliief 
of Engineers for 1900, p. 5401, and for 1902, pp. 2779, 2S25; also for 1904, p. 4120.) 
Oscillations of more than 6 inches in the level of the lake's surface are very common, 
often occurring hourly for many hours in succession, while oscillations of 2 or 3 feet 
within an hour are not uncommon. Still greater oscillations within a year or series 
of years occur, all fi'om natural causes. Moreover, during a severe winter the dis- 
charge of St. Clair River is reduced by ice to less than one-third its normal discharge, 
the remaining two-thirds being stored up in Lakes Huron and Michigan and raising 
their levels; and the difference between the total discharge during a severe winter 
and the discharge during a mild winter will probably equal, or nearly equal, the dis- 
charge of the Chicago Drainage Canal for a year. A permanent average lowering of 
6 inches in the lake's level, therefore, is not easily observed and will probably not 
be noticed by navigators. Nevertheless, the effect is real and important. Evidently 
there is a limit to the amount of water which can l)e taken from the southern end 
of Lake Michigan without compensating works at the outlet of Lake Huron. 

The Board does not condemn the present plan of taking 10,000 culjic feet per sec- 
ond, believing as it does that some such amount will he needed to protect the lives 
and health of the people of a ereat city and of a populous valley; but it invites atten- 
tion to the fact that if a much larger amount be taken it will be necessary to construct 
remedial works elsewhere, and that these are, or should be, of an international char- 
acter. It is led to make this remark by the attitude of the Illinois legislature and of 
the other principal advocates of this enterprise, which is that the 14-foot waterway 
is only a beginning, and that a much deeper channel ultimately should be constructed, 
which means that a much larger volume of water must be taken from Lake Michigan. 
It is the opinion of the Board that the sanitary reasons for the abstraction of water 
so far exceed and overshadow the commercial reasons that the amount should be 
strictly limited by the sanUary necessities of the case. It is impossible to fix a limit 
to the ftature growth of Chicago. In a future not remote larger amounts of water 
may be needed for sanitary purposes, and channels deeper than 14 feet will then 
become practicable in the open alluvial portion of the Illinois River. 

Bulletin No. 15, Survey of Northern and Northwestern Lakes, 
United States Engineer Corps, dated April 15, lc)05, gives physical 
data for each of the Great Lakes from which I have collected the fol- 
lowing facts: 

The aggregate ^rea of the basins of Lakes Michigan and Huron is 
143,1:00 square miles, the aggregate rainfall on Avhich is 343,064 
cubic feet per second, and the outflow 131,400 cubic feet per second 
(206,400—75,000 = 131,400); the evaporation and land absorption would 
therefore be 211,664 cubic feet per second. Working on the basis of 
these ligures we find that 1 foot in depth, or 45,500 square miles, the 
aggregate area of the two lakes, would equal 1,268,467,200,000 cubic 
feet and that it would take two years and 318.64 days to discharge that 
volume of water at the rate of 14,000 cubic feet per second. The 
time that it will take for the lakes to reach an approximatel}^ lixed 
regimen when subjected to the withdrawal of the volume of water 
asked for by us can only be determined by such a long series of obser- 
vations as is suggested by your honorable Board. 

An opportunit}^ to compare the mean monthh'- elevations of Lake 
]\iichigan for live years prior to the opening of the canal with the 
five years thereafter may be of interest and is therefore given below. 
The data for this comparison is taken from a table issued by the United 
States lake survey office, Detroit, Mich., sent us by Col. G. J. Lydecker^ 
tirider date of March 21, 1906. The showing indicates a higher stage 



PEESERVATION OF NIAGARA FALLS, 321 

of water in the lake for the five years since the withdrawal of water 
through the 8a.iiitary canal than that which obtained during the five 
3^ears previous to 1900, which simply indicates that the rainfall during 
that period has exceeded the total outflow and evajporation from the 
lake basins, the impounded excess serving to raise the lake level. 

From the indications afl'orded by these tables and charts it would 
seem that any conjecture advanced to the effect that 10,000 cubic feet 
per second withdrawn from the southern end of Lake Michigan would 
lower that lake and Lake Huron 6 inches is not b3,sed upon observa- 
tions made by the United States Engineers, but is purely academic. 

"'• B. What will be the resulting currents in the Chicago Ri,ver (a), 
for 8,000 cubic feet per second between the lake and junction qt river 
with the Thirtj^-ninth street sewage water ^ow?" 

This is figured for a datum stage of the lake as li miles per hour 
when the channel is widened throughout the stretch in question to 200 
feet, deepened to 16 feet at dock lines, and 26 feet 50 feet out from 
dock — that is, given a cross-section of 4,700 square feet. There will be 
an acceleration of current through bridge openings due to channel 
constructions, (h) "That (velocity) for the 10,000 cubic feet per 
second between the point where the Thirty-ninth street water flow 
joins with the river and the point wh^re the Calumet inflow connects 
with the river or drainage canal?" 

This flow enters the West Fork of the South Branch through the 
Windage basin, recently created by the United States Government, at 
Ashland avenue and the forks of the river, and flows west through the 
said West Fork into the drainage canal at Robey street. This division 
of the West Fork has a width of 220 feet and a cross section when 
fully improved of 5,220 square feet. 

The sanitary and ship canal between Robey street and Summit, 7.8 
miles, has not been excavated to full width, but it is to be given a 
cross section which will reduce the velocity of flow to 1^ miles per 
hour with 10,000 cubic feet per second passing. Between Summit 
and Willow Springs the channel has a cross section of 5,412 square 
feet. When the minimum depth of 22 feet prevails the resulting 
velocit}' would be about li miles per hour. At Willow Springs the 
rock channel is entered and its cross section, with a 22-foot depth, is 
3,542 square feet, giving a velocity for a flow of 10,000 cubic feet per 
second of 1.92 miles per hour. This is for navigable uses a practi- 
cally straight channel without an obstruction of any kind in it. 

The theory upon which this channel was designed was that there 
would be aslope of 2.5 feet from the lake to Robey street and of 1.7 feet 
from there to Willow Springs and of 3.92 feet from Willow Springs 
to Lockport, making a total slope of 8.12 feet. Observations and 
determinations made since the opening of the channel show a much 
less slope than was anticipated, and hence a greater capacity. These 
ot)servations lead us to conclude that the rock channel has a capacity 
of 840,000 cubic feet per minute at a velocity of about 2.6 miles per 
hour. 

"C. That (velocity) for the 14,000 cubic feet psr second through the 
drainage canal or other water way below where the Calumet River 
inflow is received, assuming cross sections above Lockport equal to 
that of the drainage canal and below Lockport to be that of the newly 
proposed ship panal (200 feet width, 14 feet depth) ?" 



322 



PRESERVATION OF NIAGARA FALLS. 



This question may be ansAvered as to the regular section of the drain- 
age canal, but without a detailed study involving much time can not 
be answered south of the controlling works, because the drainage canal 
debouches into a basin of irregular width, giving a very greatly increased 
cross section as far as the new power plant. The channel south of the 
power plant will not conform to the hypothesis of 200 feet width by 
14 feet depth because it will pass through slack-water pools, and when 
it reaches the Illinois River it will have a much greater cross section 
than that due to 200 b}^ 14 feet, for the report of the Commission shows 
that even after the removal of the dams in the Illinois River there 
would be a 7-foot water way with a flow of 4,200 cubic feet per second 
(see report, p. 18, last paragraph); it is therefore apparent that in 
such a stream whose natural width is largely in excess of 200 feet, the 
result of excavating within its banks 7 feet or more to give a depth of 
14 feet, would leave a chaiuiel the cross section of which would greatly 
exceed 2,800 square feet; hence a computation based upon that area 
would be misleading and useless, , 

In the subdivisions of question " C " it is hard to determine the lead- 
ing question of velocity, particularly as in 2 and 3 no dimensions of 
boats are given. However, if there were boats at dock on each side 
of a 200-foot channel I can not conceive of such rashness as an attempted 
passage between them of two boats moving in opposite directions unless 
the attempt is made b}" very small craft. 

Yours, very truly, Isiiam Randolph, 

Chief Engineer. 

W. H. BlXBY, 

Colonel^ Corps of Engineers^ U. S. A.^ 

Federal Building., City. 



LAKE MICHIGAN AT MILWAUKEE, WIS. 

Average monthly, annual, and periodic stages for certain characteristic periods from 1S19 

to 1905. 

[Referred to mean tide at New York, lake-survey level adjustment 1903. Data 1860-1905 furnished 
by United States lake survey office under date of March 21, 1906, by G. J. Lydecker, colonel. Corps of 
Engineer.><, U. S. Army. Data, 1819, 1838, 1847, from report of United States Deep- Water Commission, 
1896.] 

[Sanitary district of Chicago, May 11, 1906.— Compiled by E. L. Cooley.] 



Year. 


Jan. 


Feb. 


Mar. 


Apr. 


May. 


June. 


July. 


1895 


579. 91 
579. 06 
579. 33 
579. 72 
579. 53 


579. 80 
579. 10 
579. 41 
679. 86 
579. 61 


579. 77 
579. 11 
579. 72 
580. 18 
579 81 


579.97 
579. 29 
579. 89 
580. 50 
580. 08 


580. 13 
579. 57 
580. 38 
580. 78 
580.52 


580. 18 
579. 89 
580. 65 
580. 91 
580.83 


580. 07 


1896 


579.83 


1897 


580. 84 


1898 


580. 86 


1899 


581. 04 






Monthly average 


579. 51 


579. 56 


579.72 


579.95 


580. 28 


580. 49 


580. 53 


Year. 


Aug. 


Sept. 


Oct. 


Nov. 


Dec. 


Annual 
average. 


1895 


579.95 

57;^. 76 
5S0. 78 
580. 69 
580. 96 


579.68 
579. 66 
680. 53 
580.34 
680. 82 


579.31 
579. 61 
580. 24 
580. 33 
580. 49 


579. 09 
579. 39 
579. 98 
579. 92 
58(J. 31 


578. 98 
579.31 
579. 76 
579. 58 
579. 81 


579. 74 


1896 


579. 47 


1897 


580. 13 


1898 


580. 31 


1899 


580. 32 








Monthly average 


580. 43 


580. 21 


580. 00 


579. 74 


579. 4 J 


.579. 99 







PKESEKVATION OF NIAGAKA FALLS. 



323 



Average monthh/, annual, and periodic stages for certain characteristic periods from IS 19 

to 1905 — Continued. 



Year. 


Jan. 


Feb. 


Mar. 


Apr. 


May. 


June. 


July. 


1900 


679.66 
679. 95 
579. 76 
579. 69 
579. 87 


579.77 
579. 92 
579. 61 

579. 85 

579. 86 


579.94 
580. 34 
579. 84 
580. 06 
.580.15 


580.07 
580. 49 
579. 91 
580. 33 
580. 61 


580.31 
580. 92 
680.30 
580. 43 
580. 98 


580.42 
580. 97 
580. 50 
580. 61 
581. 36 


580. 53 


1901 


581 06 


1902 ... 


580 83 


1903 


580. 79 


1904 


581 36 








Monthly average 


579.79 


679.80 j 580.07 


580. 28 


580. .59 


580. 77 


580. 91 



Year. 



Aug. 



Sept. 



Oct. 



Dec. 



Annual 
average. 



1900 

1901 

1902 

1903 , 

1904 

Monthly average 



580. 70 
581.11 
580. 85 
580. 72 
581. 28 



580. 65 
580. 92 
580. 48 
580. 77 
581.21 



.580. 66 
680. 56 
.580. 33 
580. 50 
581.08 



580. 52 
580. 23 
580. 20 
680. 14 
680. 78 



mo. 19 
579. 95 
579. 91 
579. 82 
580. 44 



580. 28 
580. 53 
580. 21 
580. 31 
580. 75 



580.93 



580. 81 



580. 63 



680. 37 



580.06 



580. 42 



Y'ear. 


Jan. 


Feb. 


Mar. 


Apr. 


May. 


June. 


July. 


1819 




678. 02 












1838 










(584. 69) 
580. 12 
583. 15 
583. 57 
681. 78 


584 69 


1847 


679. 31 
581. 39 
582. 67 
680.86 


579. 19 
581.59 
582. 69 
580. 88 


679. 41 

681. 92 
582. 97 
681.05 


679. 50 
582. 12 
583. 24 
681.25 


579.71 
682. 74 
583. 50 
681.64 


580. 18 


1876 


583 49 


1886 


583. 38 


1860-1905 


681 80 






Y'ear. 


Aug. 


Sept. 


Oct. 


Nov. 


Dec. 


Annual 
average. 


1819 












1838 












1847 


580. 13 
583. 42 
683. 16 
581. 80 


580. 24 
583.37 
682. 91 
581.61 


579. 92 

582. 79 
582. 81 
681.39 


679. 81 
682. 89 
682. 47 
581. 13 


579. 60 

682. 14 
680. 89 


679 76 


1876 


582 61 


1886 


58'^ 96 


1860-1905 


681 34 







324 PRESERVATION OF NIAGARA FALLS. 



AJ>PENDIX I. 

[PrBLic— Xo. 367.] 

An Act For the control and regulation of the •waters of Niagara 
River, for the preservation of Niagara Falls, and for other purposes. 

Be it enacted hy the Senate and House of Bej?i'e.sejitatives of the Un ited 
States of Ame/'ica in Congress assemhled. That the diversion of water 
from Niagara River or its tributaries, in the State of New York, is 
hereby prohibited, except with the consent of the Secretary of War as 
hereinafter authorized in section two of this Act: Provided. That this 
prohibition shall not be interpreted as forbidding the diversion of the 
waters of the Great Lakes or of Niagara River for sanitary or domestic 
purposes, or for navigation, the amount of which may be fixed from 
time to time by the Congress of the United States or by the Secretary 
of War of the United States under its direction. 

Sec. '2. That the Secretary of War is hereby authorized to grant 
permits for the diversion of water in the United States from said 
Niagara River or its tributaries for the creation of power to individuals, 
companies, or corporations which are now actually producing power 
from the waters of said river, or its tributaries, in the State of New 
Tork. or from the Erie Canal: also permits for the transmission of 
power from the Dominion of Canada into the United States, to com- 
panies legally authorized therefor, both for diversion and transmission, 
as hereinafter stated, but permits for diversion shall be issued only to 
the individuals, companies, or corporations as aforesaid, and only to 
the amount now actually in use or contracted to be used in facto- 
ries the buildings for which are now in process of construction, not 
exceeding to any one individual, company or corporation as afore- 
said a maximum amount of eight thousand six hundred cubic feet 
per second, and not exceeding to all individuals, companies or cor- 
porations as aforesaid an aggregate amount of fifteen thousand six 
hundred cubic feet per second: but no revocable permits shall be 
issued by the said Secretary under the provisions hereafter set forth 
for the diversion of additional amounts of water from the said 
river or its tributaries until the approximate amount for which per- 
mits may be issued as above, to wit. fifteen thousand, six hundred 
cubic feet per second, shall for a period of not less than six months 
have been diverted from the waters of said river or its tributaries, in 
the State of New York: P/ocid'^d. That the said Secretary, subject to 
the provisions of .section five of this Act. under the limitations relating 
to time above set forth i^s hereby authorized to grant revocable permits, 
from time to time, to such individuals, companies, or corporations, 
or their assigns, for the diversion of additional amounts of water 
from the said river or its tributaries to such amount, if any. as. in 
connection with the amount diverted on the Canadian side, .shall not 
injure or interfere with the navigable capacity of said river, or its 
integrity and proper volume as a boundary stream, or the scenic gran- 
deur of Niagai-a Falls: and that the quantity of electrical power which 
may by permits be allowed to be transmitted from the Dominion 
of Canada into the United States, shall be one hundred and sixty thou- 
sand horsepower: I^roclded farther^ That the said Secretary, 'suVjject 



PEESERVATION OF NIAGARA FALLS. 325 

to the provisions of section fire of this Act. may issue revocable 
permits for the transmission of additional electrical power so gen- 
erated in Canada, but in no event shall the amount included in such 
permits, together with the said one hundred and sixty thousand horse- 
power and the amount generated and used in Canada, exceed three 
hundred and fifty thousand horsepower: Pi^ovidtd alrcays. That the 
provisions herein permitting diversions and fixing the aggregate horse- 
power herein permitted to be transmitted into the United States, as 
aforesaid, are intended as a limitation on the authority of the Secre- 
tary of ^Var, and shall in no wise be construed as a direction to said 
Secretary to issue permits, and the Secretary of War shall make 
regulations preventing or limiting- the diversion of water and the 
admission of electrical power as herein stated: and the permits for the 
transmission of electrical power issued by the Secretary of War may 
specify the persons, companies, or corporations by whom the same 
shall be transmitted, and the persons, companies, or coi^porations to 
whom the same shall be delivered. 

Sec. 3. That any person, company, or corporation diverting water 
from the said Niagara River or its tributaries, or transmitting elec- 
trical power into the United States from Canada., except as herein 
stated, or violating any of the provisions of this Act. shall be deemed 
guilty of a misdemeanor, and on conviction thereof shall be punished 
by a fine not exceeding two thousand five hundred dollars nor less than 
five hundred dollars, or by imprisonment (in the case of a natural per- 
son) not exceeding one year, or by both such punishments, in the dis- 
cretion of the court. And. further, the removal of any structures or 
parts of structures erected in violation of this Act. or any construction 
incidental to or used for such diversion of water or transmission of 
power as is herein prohibited, as well as any diversion of water or 
transmission of power in violation hereof, may be enforced or enjoined 
at the suit of the United States bv any circuit court having jurisdic- 
tion in any district in which the same may be located, and proper pro- 
ceedings to this end may be instituted under the direction of the 
Attorney-General of the United States. 

Sec. i. That the President of the United States is respectfully re- 
quested to open negotiations with the Government of Great Britain 
for the purpose of eft'ectually providing, by suitable treaty with said 
Government, for such regulation and control of the waters of Niagara 
River and its tributaries as will preserve the scenic grandeur of Niag- 
ara Falls and of the rapids in said river. 

Sec. 5. That the provisions of this Act shall remain in force for 
three years from and after date of its passage, at the expiration of 
which time all permits granted hereunder by the Secretary of War shall 
terminate unless sooner revoked, and the Secretary of War is hereby 
authorized to revoke any or all permits granted by him by authority 
of this Act. and nothing herein contained shall be held to confirm, 
establish, or confer any rights heretofore claimed or exercised in the 
diversion of water or the transmission of power. 

Sec. 6. That for accomplishing the purposes detailed in this Act the 
sum of fifty thousand dollars, or so much thereof as may be necessary, 
is hereby appropriated from any moneys in the Treasury not otherwise 
appropriated. 

Sec. 7. That the right to alter, amend, or repeal this Act is hereby 
expressly reserved. 

Approved. June -9, 1906. 



'/ 



